incomplete instruction in Florida

2021More specifically, to support a finding of invited error, defense counsel must either request the incorrect instruction or be aware an instruction is incorrect but agree to it anyway: [This Court has] also recognized, in the context of certain erroneous jury instructions, a fundamental error analysis exception “where defense counsel affirmatively agreed to or requested the incomplete instruction.” State v. Lucas, 645 So. 2d 425, 427 (Fla. 1994), receded from on other grounds by State v. Spencer, 216 So. 3d 481 (Fla. 2017).

2019The first exception, recognized in State v. Lucas , 645 So. 2d 425 (Fla. 1994), and Armstrong v. State , 579 So. 2d 734 (Fla. 1991), provides that there is no fundamental error where defense counsel affirmatively agreed to or requested an incomplete instruction, and it is directly applicable here.

2021In Lowe, we also cited approvingly to Black v. State, 695 So. 2d 459, 461 (Fla. 1st DCA 1997), for the proposition that “defense counsel [(1)] must be aware that an incorrect instruction is being read and [(2)] must affirmatively agree to, or request, the incomplete instruction.” 259 So. 3d at 50 .

2018However, we also recognized in that context that the exception did not apply "where defense counsel merely acquiesced to [the incomplete] instructions." Spencer , 216 So.3d at 486 ; see, e.g. , Black v. State , 695 So.2d 459 , 461 (Fla. 1st DCA 1997) ("[D]efense counsel must be aware that an incorrect instruction is being read and must affirmatively agree to, or request, the incomplete instruction.").

2019The first exception, recognized in State v. Lucas , 645 So. 2d 425 (Fla. 1994), and Armstrong v. State , 579 So. 2d 734 (Fla. 1991), provides that there is no fundamental error where defense counsel affirmatively agreed to or requested an incomplete instruction, and it is directly applicable here.

2019The first exception, recognized in State v. Lucas , 645 So. 2d 425 (Fla. 1994), and Armstrong v. State , 579 So. 2d 734 (Fla. 1991), provides that there is no fundamental error where defense counsel affirmatively agreed to or requested an incomplete instruction, and it is directly applicable here.

2021More specifically, to support a finding of invited error, defense counsel must either request the incorrect instruction or be aware an instruction is incorrect but agree to it anyway: [This Court has] also recognized, in the context of certain erroneous jury instructions, a fundamental error analysis exception “where defense counsel affirmatively agreed to or requested the incomplete instruction.” State v. Lucas, 645 So. 2d 425, 427 (Fla. 1994), receded from on other grounds by State v. Spencer, 216 So. 3d 481 (Fla. 2017).

2019In these circumstances, the Florida Supreme Court has carved out two situations where the defendant cannot successfully assert fundamental error: (1) "where defense counsel affirmatively agreed to or requested an incomplete instruction," or (2) "where the defendant expressly conceded that the homicide or attempted homicide was not justified or excusable."2 Spencer, 216 So. 3d at 486, 488 ; see, e.g., Gomez v. State, 274 So. 3d 1237, 1238 (Fla. 5th DCA 2019) (holding that the first situation applied where defense counsel "affirmatively agreed on the record and to the court that she was not seek

2024See [Mizell, 773 So. 2d at 621 ] (relying on the jury instruction’s admonition that “[b]ased upon appearances, (defendant) must have actually believed that the danger was real.” (quoting Fla. Std.

2019Van Loan, 736 So. 2d at 804 ("Before this exception applies, defense counsel must be aware of the omission, alteration, or incomplete instruction and affirmatively agree to it."); see also Pignataro v. State, 834 So. 2d 965, 966 (Fla. 2d DCA 2003) ("Here, as in Van Loan, the record contains no indication that trial counsel had prior knowledge of the omission and agreed to it."); Moore v. State, 114 So. 3d 486, 490-91 (Fla. 1st DCA 2013) ("This court has held that knowledge of the error is necessary to waive fundamental error.").

2019Van Loan, 736 So. 2d at 804 ("Before this exception applies, defense counsel must be aware of the omission, alteration, or incomplete instruction and affirmatively agree to it."); see also Pignataro v. State, 834 So. 2d 965, 966 (Fla. 2d DCA 2003) ("Here, as in Van Loan, the record contains no indication that trial counsel had prior knowledge of the omission and agreed to it."); Moore v. State, 114 So. 3d 486, 490-91 (Fla. 1st DCA 2013) ("This court has held that knowledge of the error is necessary to waive fundamental error.").

2019In these circumstances, the Florida Supreme Court has carved out two situations where the defendant cannot successfully assert fundamental error: (1) "where defense counsel affirmatively agreed to or requested an incomplete instruction," or (2) "where the defendant expressly conceded that the homicide or attempted homicide was not justified or excusable."2 Spencer, 216 So. 3d at 486, 488 ; see, e.g., Gomez v. State, 274 So. 3d 1237, 1238 (Fla. 5th DCA 2019) (holding that the first situation applied where defense counsel "affirmatively agreed on the record and to the court that she was not seek

2019Van Loan, 736 So. 2d at 804 ("Before this exception applies, defense counsel must be aware of the omission, alteration, or incomplete instruction and affirmatively agree to it."); see also Pignataro v. State, 834 So. 2d 965, 966 (Fla. 2d DCA 2003) ("Here, as in Van Loan, the record contains no indication that trial counsel had prior knowledge of the omission and agreed to it."); Moore v. State, 114 So. 3d 486, 490-91 (Fla. 1st DCA 2013) ("This court has held that knowledge of the error is necessary to waive fundamental error.").

2018See Woody v. State, 27 So. 3d 745 , 746 n.3 (Fla. 4th DCA 2010) (holding that claim of ineffective assistance based on failure to object to incomplete manslaughter instruction could be raised in a rule 3.850 ineffectiveness claim notwithstanding the State's contention that it was a claim of trial court error).

2017These circumstances do not exist on the instant record.”); Roberts v. State, 694 So.2d 825, 826 (Fla. 2d DCA 1997) (“Since defense counsel did not affirmatively agree to the omission of the instructions, but only acquiesced in the instructions as given, the exception does not apply.”); Ortiz v. State, 682 So.2d 217, 217 (Fla. 5th DCA 1996) (“As we held in Blandon[ v. State, 657 So.2d 1198 (Fla. 5th DCA 1995) ], the mere failure to object to the omission of a justifiable homicide charge in an attempted murder case does not constitute the affirmative waiver discussed in Armstrong.

2017These circumstances do not exist on the instant record.”); Roberts v. State, 694 So. 2d 825, 826 (Fla. 2d DCA 1997) (“Since defense counsel did not affirmatively agree to the omission of the instructions, but only acquiesced in the instructions as given, the exception does not apply.”); Ortiz v. State, 682 So. 2d 217, 217 (Fla. 5th DCA 1996) (“As we held in Blandon[ v. State, 657 So. 2d 1198 (Fla. 5th DCA 1995)], the mere failure to object to the omission of a justifiable homicide charge in an attempted murder case does not constitute the affirmative waiver discussed in Armstrong.

2017These circumstances do not exist on the instant record.”); Roberts v. State, 694 So.2d 825, 826 (Fla. 2d DCA 1997) (“Since defense counsel did not affirmatively agree to the omission of the instructions, but only acquiesced in the instructions as given, the exception does not apply.”); Ortiz v. State, 682 So.2d 217, 217 (Fla. 5th DCA 1996) (“As we held in Blandon[ v. State, 657 So.2d 1198 (Fla. 5th DCA 1995) ], the mere failure to object to the omission of a justifiable homicide charge in an attempted murder case does not constitute the affirmative waiver discussed in Armstrong.

2017These circumstances do not exist on the instant record.”); Roberts v. State, 694 So. 2d 825, 826 (Fla. 2d DCA 1997) (“Since defense counsel did not affirmatively agree to the omission of the instructions, but only acquiesced in the instructions as given, the exception does not apply.”); Ortiz v. State, 682 So. 2d 217, 217 (Fla. 5th DCA 1996) (“As we held in Blandon[ v. State, 657 So. 2d 1198 (Fla. 5th DCA 1995)], the mere failure to object to the omission of a justifiable homicide charge in an attempted murder case does not constitute the affirmative waiver discussed in Armstrong.

2015The court explained that because “manslaughter is a ‘residual offense, defined by reference to what it is not,’ a complete instruction on manslaughter requires an explanation that justifiable and excusable homicide are excluded from the crime.” Id. (quoting Stockton v. State, 544 So.2d 1006, 1008 (Fla.1989)).

2015See In re Standard Jury Instructions In Criminal Case —No.2006-1, 946 So.2d 1061, 1062 (Fla.2006); In re Standard Jury Instructions in Criminal Cases —Report No. 2007-10, 997 So.2d 403, 404 (Fla.2008). 1 As appellant correctly notes, in Lucas, 645 So.2d at 427 , the supreme court held the failure to instruct on justifiable or excusable homicide in a manslaughter instruction is “fundamental error ... if the defendant has been convicted of either manslaughter or a greater offense not more than one step removed.” “The only exception we have recognized is where defense counsel affirmatively agreed

2015See In re Standard Jury Instructions In Criminal Case —No.2006-1, 946 So.2d 1061, 1062 (Fla.2006); In re Standard Jury Instructions in Criminal Cases —Report No. 2007-10, 997 So.2d 403, 404 (Fla.2008). 1 As appellant correctly notes, in Lucas, 645 So.2d at 427 , the supreme court held the failure to instruct on justifiable or excusable homicide in a manslaughter instruction is “fundamental error ... if the defendant has been convicted of either manslaughter or a greater offense not more than one step removed.” “The only exception we have recognized is where defense counsel affirmatively agreed

2013Similarly in Beckham v. State, 884 So.2d 969, 971 (Fla. 1st DCA 2004), this court again found the failure to instruct on justifiable or excusable homicide was fundamental error, relying on Lucas .

2013Accordingly, the Armstrong exception is inapplicable to these facts.” Id. at 973. (emphasis added).

2012See State v. Lucas, 645 So.2d 425, 427 (Fla.1994) (“The only exception we have recognized is where defense counsel affirmatively agreed to or requested the incomplete instruction.”) (citing Armstrong, 579 So.2d at 734 ); see also Tindall v. State, 997 So.2d 1260, 1261 (Fla. 5th DCA 2009); Jimenez v. State, 994 So.2d 1141, 1142-43 (Fla. 3d DCA 2008); York v. State, 932 So.2d 413 , 416 n. 2 (Fla. 2d DCA 2006) (“An exception from the doctrine of fundamental error applies in circumstances ‘where defense counsel affirmatively agreed to or requested’ an erroneous instruction.”) (quoting Lucas, 645 S

2012See State v. Lucas, 645 So.2d 425, 427 (Fla.1994) (“The only exception we have recognized is where defense counsel affirmatively agreed to or requested the incomplete instruction.”) (citing Armstrong, 579 So.2d at 734 ); see also Tindall v. State, 997 So.2d 1260, 1261 (Fla. 5th DCA 2009); Jimenez v. State, 994 So.2d 1141, 1142-43 (Fla. 3d DCA 2008); York v. State, 932 So.2d 413 , 416 n. 2 (Fla. 2d DCA 2006) (“An exception from the doctrine of fundamental error applies in circumstances ‘where defense counsel affirmatively agreed to or requested’ an erroneous instruction.”) (quoting Lucas, 645 S

2012See State v. Lucas, 645 So.2d 425, 427 (Fla.1994) (“The only exception we have recognized is where defense counsel affirmatively agreed to or requested the incomplete instruction.”) (citing Armstrong, 579 So.2d at 734 ); see also Tindall v. State, 997 So.2d 1260, 1261 (Fla. 5th DCA 2009); Jimenez v. State, 994 So.2d 1141, 1142-43 (Fla. 3d DCA 2008); York v. State, 932 So.2d 413 , 416 n. 2 (Fla. 2d DCA 2006) (“An exception from the doctrine of fundamental error applies in circumstances ‘where defense counsel affirmatively agreed to or requested’ an erroneous instruction.”) (quoting Lucas, 645 S

2004See Reed, 837 So.2d at 369 .

2004The court in Lucas acknowledged an exception to this rule "where defense counsel affirmatively agreed to or requested the incomplete instruction." 645 So.2d at 427 , citing Armstrong v. State, 579 So.2d 734 , 735 & n. 1 (Fla.1991) (holding that defense counsel waived future objection by defendant to trial court's failure to give full, complete initial jury instruction on justifiable and excusable homicide as part of manslaughter instruction where, for tactical reasons, counsel specifically requested abbreviated instruction, which otherwise would have constituted fundamental error); see also Ph

2001Id. at 735 n. 1; see Thomas v. State, 730 So.2d 667, 668 (Fla.1998) ("Where counsel communicates to the trial judge his acceptance of the procedure employed, the issue will be considered waived."); State v. Lucas, 645 So.2d 425, 427 (Fla.1994) (recognizing exception to fundamental error doctrine "where defense counsel affirmatively agreed to or requested the incomplete instruction").