green
Positive treatment
Quoted verbatim 1×
53.2 score
“for an issue to be preserved for appeal, . . . it 'must be presented to the lower court and the specific legal argument or ground to be argued on appeal must be part of that presentation if it is to be considered preserved.”
Treatment trajectory · 1993 → 2026 · click a year to view as-of
1993
2009
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Top citers, strongest first. 50 distinct citers.
How cited ↗
examined
Cited as authority (verbatim quote)
Justin David Lantz v. State of Florida
for an issue to be preserved for appeal, . . . it 'must be presented to the lower court and the specific legal argument or ground to be argued on appeal must be part of that presentation if it is to be considered preserved.
cited
Cited as authority (rule)
Carlos Zepeda v. Citizen Property Insurance Corporation
Ass’n v. Robbins, 914 So. 2d 925, 928 (Fla. 2005); Doorbal v. State, 983 So. 2d 464, 492 (Fla. 2008); Archer v. State, 613 So. 2d 446, 448 (Fla. 1993).
discussed
Cited as authority (rule)
Artemis Pascalides v. Gabriela Artico
“For an issue to be preserved for appeal . . . it ‘must be presented to the lower court and the specific legal argument or ground to be argued on appeal must be part of that presentation if it is to be considered preserved.’” Reed v. State, 287 So. 3d 606 , 609 (Fla. 4th DCA 2019) (quoting Archer v. State, 613 So. 2d 446, 448 (Fla. 1993)). 5 “Courts generally are unauthorized to award relief not requested in the parties’ pleadings.” Pure Powersports, LLC v. 7529 Salisbury Rd.
cited
Cited as authority (rule)
Brandon Paul Janssen v. State of Florida
Archer v. State, 613 So. 2d 446, 448 (Fla. 1993).
discussed
Cited as authority (rule)
Michael Shawn MacMullin v. Michael Findlay
Rather, it is apparent from reading the release that in order to settle the matter with [defendant], [plaintiffs] Marjorie and William would each be required to release [defendants] John, Joseph, and Quality if they chose to accept John's proposal.”) See also Roth v. Cohen, 941 So. 2d 496, 500 (Fla. 3d DCA 2006) (“For an issue to be preserved for appeal, . . . it ‘must be presented to the lower court and the specific legal argument or ground to be argued on appeal must be part of that presentation if it is to be considered preserved.’”) (quoting Archer v. State, 613 So. 2d 446, 448 (…
discussed
Cited as authority (rule)
Harris v. Secretary, Department of Corrections
Bradley, 33 So.3d at 675 (citing Archer v. State, 613 So.2d 446, 448 (Fla. 1993)); see also Thomas v. State, 787 So.2d 27, 29 (Fla. 2d DCA 2001) (stating that the independent act doctrine does not apply “when the evidence demonstrates that the murder was committed in furtherance of the initial criminal scheme.”). “[A] shooting during an armed robbery is a foreseeable event.” Cannon v. State, 18 So.3d 562, 564 (Fla. 1st DCA 2009); see also Washington v. State, 873 So.2d 1268, 1270 (Fla. 4th DCA 2004) (“A shooting that occurs during an armed robbery with a firearm does not exceed the s…
discussed
Cited as authority (rule)
State of Florida v. Mark Anthony Poole
“In order to preserve an issue for appeal, the issue ‘must be presented to the lower court and the specific legal argument or grounds to be argued on appeal must be part of that presentation.’ ” Bryant v. State, 901 So. 2d 810, 822 (Fla. 2005) (emphasis added) (quoting Archer v. State, 613 So. 2d 446, 448 (Fla. 1993)).
discussed
Cited as authority (rule)
BURNIE REED v. STATE OF FLORIDA
“For an issue to be preserved for appeal . . . it ‘must be presented to the lower court and the specific legal argument or ground to be argued on appeal must be part of that presentation if it is to be considered preserved.’” Archer v. State, 613 So. 2d 446, 448 (Fla. 1993) (quoting Tillman v. State, 471 So. 2d 32, 35 (Fla. 1985)).
discussed
Cited as authority (rule)
Thelma Denise Lowery v. State of Florida
However, “[f]or an issue to be preserved for appeal, . . . it ‘must be presented to the lower court and the specific legal argument or ground to be argued on appeal must be part of that presentation if it is to be considered preserved.’” Archer v. State, 613 So. 2d 446, 448 (Fla. 1993) (quoting Tillman v. State, 471 So. 2d 32, 35 (Fla. 1985) (emphasis added)).
discussed
Cited as authority (rule)
Margaret A. Allen v. State of Florida
“In order to preserve an issue for appeal, the issue ‘must be presented to the lower court and the specific legal argument or grounds to be argued on appeal must be part of that presentation.’ ” Bryant v. State, 901 So. 2d 810, 822 (Fla. 2015) (quoting Archer v. State, 613 So. 2d 446, 448 (Fla. 1993)).
discussed
Cited as authority (rule)
Margaret A. Allen v. State of Florida
However, this claim was not raised in Allen’s postconviction motion before the circuit court. lt therefore was not preserved for review. “ln order to preserve an issue for appeal, the issue ‘must be presented to the lower court and the specific legal argument or grounds to be argued on appeal must be part of that presentation.’ ” Bryant v. State, 901 So. 2d 810, 822 (Fla. 2015) (quoting Archer v. State, 613 So. 2d 446, 448 (Fla. 1993)).
discussed
Cited as authority (rule)
McCray v. State
See Castor v. State, 365 So. 2d 701, 703 (Fla. 1978) ("[A] reviewing court will not consider points raised for the first time on appeal."); Archer v. State, 613 So. 2d 446, 448 (Fla. 1993) ("For an issue to be preserved for appeal, however, it 'must be presented to the lower court and the specific legal argument or ground to be argued on appeal must be part of that presentation if it is to be considered preserved.' " (quoting Tillman v. State, 471 So. 2d 32, 35 (Fla. 1985))).
discussed
Cited as authority (rule)
McCray v. State
See Castor v. State, 365 So.2d 701, 703 (Fla. 1978) (“[A] reviewing court will not consider points raised for the first time on appeal.”); Archer v. State, 613 So.2d 446, 448 (Fla. 1993) (“For an issue to be preserved for appeal, however, it ‘must be presented to the lower court and the specific legal argument or ground to be argued on appeal must be part of that presentation if it is to be considered preserved,’ ” (quoting Tillman v. State, 471 So.2d 32, 35 (Fla. 1985))).
discussed
Cited as authority (rule)
City of Key West v. Key West Golf Club Homeowners' Assoc. Inc.
The law is well-established, however, that “[f]or an issue to be preserved for appeal, . . . it ‘must be presented to the lower court and the specific legal argument or ground to be argued on appeal must be part of that presentation if it is to be considered preserved.’” See Roth v. Cohen, 941 So. 2d 496, 500 (Fla. 3d DCA 2006) (quoting Archer v. State, 613 So. 2d 446, 448 (Fla. 1993)).
cited
Cited as authority (rule)
Terry Smith v. State of Florida
See id.; Archer v. State, 613 So.2d 446, 448 (Fla.1993).
discussed
Cited as authority (rule)
T.M.H. v. D.M.T.
Id.; see also Newell v. State, 875 So.2d 747, 748 (Fla. 2d DCA 2004) (reciting general rule that the party challenging a statute has the burden of establishing its invalidity, and rejecting without analysis constitutional challenge to statute where “conclusory argument demonstrate[d] no basis for reversal”); Perez v. State, 919 So.2d 347, 359 (Fla.2005) (holding that in order to preserve an issue for appeal, the issue “ ‘must be presented to the lower court and the specific legal argument or ground to be argued on appeal must be part of that presentation’ ”) (quoting Archer v. Stat…
discussed
Cited as authority (rule)
Tmh v. Dmt
Id.; see also Newell v. State, 875 So.2d 747, 748 (Fla. 2d DCA 2004) (reciting general rule that the party challenging a statute has the burden of establishing its invalidity, and rejecting without analysis constitutional challenge to statute where "conclusory argument demonstrate[d] no basis for reversal"); Perez v. State, 919 So.2d 347, 359 (Fla.2005) (holding that in order to preserve an issue for appeal, the issue "`must be presented to the lower court and the specific legal argument or ground to be argued on appeal must be part of that presentation'") (quoting Archer v. State, 613 So.2d 4…
discussed
Cited as authority (rule)
Del Valle v. State
(2×)
“For an issue to be preserved for appeal ... it must be presented to the lower court and the specific legal argument or ground to be argued on appeal must be part of that presentation if it is to be considered preserved.” Archer v. State, 613 So.2d 446, 447 (Fla.1993) (internal quotation marks omitted).
discussed
Cited as authority (rule)
Johnson v. State
See Lovette v. State, 636 So.2d 1304 (Fla.1994); Perez v. State, 711 So.2d 1215 (Fla. 3d DCA 1998); Archer v. State, 613 So.2d 446, 448 (Fla.1993) (holding that the independent act theory is inappropriate when the defendant created the situation and the victim’s death was a natural and foreseeable result of forces that the defendant set in motion).
discussed
Cited as authority (rule)
Cole v. State
(2×)
Id. at 566 ; see also Williams v. State, 622 So.2d 456, 463 (Fla. 1993) (holding that HAC "cannot be applied *609 vicariously, absent a showing by the State that the defendant directed or knew how the victim would be killed"); Archer v. State, 613 So.2d 446, 448 (Fla.1993) ("[A] defendant who arranges for a killing but who is not present and who does not know how the murder will be accomplished cannot be subjected vicariously to the heinous, atrocious, or cruel aggravator.").
discussed
Cited as authority (rule)
Rachid v. Perez
To preserve an issue for appellate review, it “must be presented to the lower court and the specific legal argument or ground to be argued on appeal must be part of that presentation.” Roth v. Cohen, 941 So.2d 496, 500 (Fla. 3d DCA 2006) (quoting Archer v. State, 613 So.2d 446, 448 (Fla.1993)).
discussed
Cited as authority (rule)
Victorino v. State
(2×)
Florida Rule of Criminal Procedure 3.380(b) states that a motion for judgment of acquittal “must fully set forth the grounds on which it is based.” (Emphasis added.) See Archer v. State, 613 So.2d 446, 448 (Fla.1993) (holding argument that motion for judgment of acquittal was erroneously denied was not preserved where specific grounds argued on appeal were not raised in the trial court); see also Steinhorst v. State, 412 So.2d 332, 338 (Fla.1982).
discussed
Cited as authority (rule)
Puiatti v. SECRETARY, DEPT. OF CORRECTIONS
To raise an argument on appeal, that argument must first be presented to the lower court at trial, “and the specific legal argument or ground to be argued on appeal must be part of that presentation.” Archer v. State, 613 So.2d 446, 448 (Fla. 1993).
discussed
Cited as authority (rule)
Fields v. State
"For an issue to be preserved for appeal, ... it `must be presented to the lower court and the specific legal argument or ground to be argued on appeal must be part of that presentation if it is to be considered preserved.'" Archer v. State, 613 So.2d 446, 448 (Fla.1993) (quoting Tillman v. State, 471 So.2d 32, 35 (Fla.1985)).
discussed
Cited as authority (rule)
State ex rel. Gardner v. Allstar Bail Bonds
“For an issue to be preserved for appeal, ... it ‘must be presented to the lower court and the specific legal argument or ground to be argued on appeal must be part of that presentation if it is to be considered preserved.’ ” Archer v. State, 613 So.2d 446, 448 (Fla.1993) (quoting Tillman v. State, 471 So.2d 32, 35 (Fla.1985)); Wright v. State, 857 So.2d 861, 876 (Fla.2003) (“In order to preserve an issue for appellate review, the issue must be presented to the lower court and the specific legal argument or ground to be argued on review must be part of that presentation.”), cer t. …
discussed
Cited as authority (rule)
Williams v. State
An issue raised on appeal must first be presented to the lower court, "and the specific legal argument or ground to be argued on appeal must be part of that presentation." Archer v. State, 613 So.2d 446, 448 (Fla.1993) (quoting Tillman v. State, 471 So.2d 32, 35 (Fla.1985)).
discussed
Cited as authority (rule)
Hoskins v. State
"For an issue to be preserved for appeal, . . . it `must be presented to the lower court and the specific legal argument or ground to be argued on appeal must be part of that presentation if it is to be considered preserved.'" Perez v. State, 919 So.2d 347, 359 (Fla.2005) (quoting Archer v. State, 613 So.2d 446, 448 (Fla. 1993)) (emphasis added), cert. denied, ___ U.S. ___, 126 S.Ct. 2359 , 165 L.Ed.2d 285 (2006); see also Rimmer, 825 So.2d at 330 .
discussed
Cited as authority (rule)
Roth v. Cohen
"For an issue to be preserved for appeal, . . . it `must be presented to the lower court and the specific legal argument or ground to be argued on appeal must be part of that presentation if it is to be considered preserved.'" Archer v. State, 613 So.2d 446, 448 (Fla. 1993); Vacation Beach, Inc. v. Charles Boyd Const., Inc., 906 So.2d 374 (Fla. 5th DCA 2005); Parlier v. Eagle-Picher Indus., Inc., 622 So.2d 479 (Fla. 5th DCA 1993).
discussed
Cited as authority (rule)
McDonald v. State
Because we conclude that the circuit court properly allowed McDonald to represent himself, these claims may not be raised for the first time on appeal. [2] Similarly, some of the other claims now asserted by CCRC are procedurally barred because they were not raised below. [3] See Perez v. State, 919 So.2d 347, 359 (Fla.2005) (holding that in order to preserve an issue for appeal, the issue "must be presented to the lower court and the specific legal argument or ground to be argued on appeal must be part of that presentation") (quoting Archer v. State, 613 So.2d 446, 448 (Fla.1993)), cert. deni…
discussed
Cited as authority (rule)
Anderson v. Wagner
"For an issue to be preserved for appeal, . . . it `must be presented to the lower court and the specific legal argument or ground to be argued on appeal must be part of that presentation if it is to be considered preserved.'" Archer v. State, 613 So.2d 446, 448 (Fla.1993) (quoting Tillman v. State, 471 So.2d 32, 35 (Fla.1985)).
discussed
Cited as authority (rule)
Reynolds v. State
"For an issue to be preserved for appeal, ... it `must be presented to the lower court and the specific legal argument or ground to be argued on appeal must be part of that presentation if it is to be considered preserved.'" Archer v. State, 613 So.2d 446, 448 (Fla.1993) (quoting Tillman v. State, 471 So.2d 32, 35 (Fla.1985)).
examined
Cited as authority (rule)
Perez v. State
(3×)
also: Cited "see"
In Perez's motion to suppress, he asserted that his statements were obtained illegally because he was "coerced/forced or under duress at the times of the statements," and that he made the statements "without a knowing and voluntary waiver of his rights and without the benefit of counsel." During the hearing on Perez's motion, his counsel made two specific assertions to the trial court: (1) that the statement "was given through misleading or confusing statements of Perez's rights" by the police in that he was misled regarding his custody status; and (2) "that the statement was obtained through …
discussed
Cited as authority (rule)
Bryant v. State
In order to preserve an issue for appeal, the issue "must be presented to the lower court and the specific legal argument or grounds to be argued on appeal must be part of that presentation." Archer v. State, 613 So.2d 446, 448 (Fla.1993) (quoting Tillman v. State, 471 So.2d 32, 35 (Fla.1985)).
discussed
Cited as authority (rule)
Diaz v. State
"For an issue to be preserved for appeal, however, it `must be presented to the lower court and the specific legal argument or ground to be argued on appeal must be part of that presentation if it is to be considered preserved.'" Archer v. State, 613 So.2d 446, 448 (Fla.1993) (quoting Tillman v. State, 471 So.2d 32, 35 (Fla.1985)).
discussed
Cited as authority (rule)
Brooks v. State
P. 3.380(b) (stating, in pertinent part, that a motion for judgment of acquittal "must fully set forth the grounds on which it is based"); Woods v. State, 733 So.2d 980, 984-85 (Fla.1999); Archer v. State, 613 So.2d 446, 448 (Fla. 1993).
cited
Cited as authority (rule)
J.E. v. State
Archer v. State, 613 So.2d 446, 448 (Fla. 1993); Harris v. State, 711 So.2d 1220, 1221 (Fla. 5th DCA 1998); Green v. State, 711 So.2d 69, 70 (Fla. 4th DCA 1998).
discussed
Cited as authority (rule)
Dicks v. State
W illiams v. Sta te, 622 So .2d 456, 4 63 (Fla. 19 93), cert. denied 510 U.S . 1000, 11 4 S.Ct. 570 , 126 L.Ed .2d 4 70 (1 993 ) (find ing he inous , atroc ious , or cr uel ag grav ating circu ms tanc e inap plicab le in murder-for-hire case where State failed to prove beyond reasonable doubt that defendant knew or ordered the particu lar ma nner in wh ich the victim s were k illed); Arche r v. State , 613 So.2d 446, 448 (Fla. 1993) (holding that the heinous, atrocious or cruel aggravating circumstance cannot be applied vicariously to a defendant who arranges for a killing, but is not present …
discussed
Cited as authority (rule)
Rains v. State
It is well established that for an issue involving the denial of a motion for judgment of acquittal to be preserved for appeal, it “must be presented to the lower court and the specific legal argument or ground to be argued on appeal must be part of the presentation if it is to be considered preserved.” Archer v. State, 613 So.2d 446, 448 (Fla.1993) (quoting Tillman v. State, 471 So.2d 32, 33 (Fla.1985)) (emphasis added).
discussed
Cited "see"
Charles Ruffenach v. Deutsche Bank National Trust Company, as Trustee for Ameriquest Mortgage Securities Inc., Asset- Backed Pass-Through Certificates Series 2005-R8, Raymond Lozano, Alili Rihkrand, Islebrook at Meadow Woods Homeowners' Association, Inc., Orange County, and Cit Financial, Inc.
See Bryant v. State, 901 So. 2d 810, 822 (Fla. 2005) (“In order to preserve an issue for appeal, the issue must be presented to the lower court and the specific legal argument or grounds to be argued on appeal must be part of that presentation.” (quoting Archer v. State, 613 So. 2d 446, 448 (Fla. 1993))).
discussed
Cited "see"
Florida Virtual School v. Courtney Calfee
See Bryant v. State, 901 So. 2d 810, 822 (Fla. 2005) (“In order to preserve an issue for appeal, the issue ‘must be presented to the lower court and the specific legal argument or grounds to be argued on appeal must be part of that presentation.’” (quoting Archer v. State, 613 So. 2d 446 , 448 9 Calfee’s claim about her supervisor’s alleged oral promise.
discussed
Cited "see"
AMERICAN PLATINUM PROPERTY AND CASUALTY INSURANCE COMPANY vs DAVID SWANK
See Archer v. Winner v. Westwood, 237 So. 2d 151 (Fla. 1970) (adopting rule 1.250 and incorporating reference to rule 1.420). 8 State, 613 So. 2d 446, 448 (Fla. 1993) (holding that to preserve issue for appeal, issue “must be presented to the lower court and the specific legal argument or ground to be argued on appeal must be part of that presentation” (quoting Tillman v. State, 471 So. 2d 32, 35 (Fla. 1985))).
discussed
Cited "see"
JARED MARGOLIS, etc. v. CITY OF MIAMI GARDENS
See Roth v. Cohen, 941 So. 2d 496, 500 (Fla. 3d DCA 2006) (“For an issue to be preserved for appeal, … it ‘must be presented to the lower court and the specific legal argument or ground to be argued on appeal must be part of that presentation if it is to be considered preserved.’ ” (quoting Archer v. State, 613 So. 2d 446, 448 (Fla. 1993))). 2
discussed
Cited "see"
DANIEL FOX, etc. v. CITY OF AVENTURA
See Roth v. Cohen, 941 So. 2d 496, 500 (Fla. 3d DCA 2006) (“For an issue to be preserved for appeal, … it ‘must be presented to the lower court and the specific legal argument or ground to be argued on appeal must be part of that presentation if it is to be considered preserved.’ ” (quoting Archer v. State, 613 So. 2d 446, 448 (Fla. 1993))). 2
discussed
Cited "see"
ALEXANDER P. KAMINISKY, etc. v. VILLAGE OF BAL HARBOUR
See Roth v. Cohen, 941 So. 2d 496, 500 (Fla. 3d DCA 2006) (“For an issue to be preserved for appeal, … it ‘must be presented to the lower court and the specific legal argument or ground to be argued on appeal must be part of that presentation if it is to be considered preserved.’ ” (quoting Archer v. State, 613 So. 2d 446, 448 (Fla. 1993))). 2
discussed
Cited "see"
Rollins v. Dickerson and Delgado
See Roth v. Cohen, 941 So.2d 496, 600 (Fla. 3d DCA 2006) (holding that an issue “must be presented to the lower court and the specific legal argument or ground to be argued on appeal must be part of that presentation if it is to be considered preserved”) (quoting Archer v. State, 613 So.2d 446, 448 (Fla. 1993)).
discussed
Cited "see"
Garcia v. State
See Archer v. State, 613 So.2d 446, 448 (Fla.1993) (holding that the independent act theory is inappropriate when the defendant created the situation and the victim’s death was a natural and foreseeable result of forces which the defendant set in motion).
discussed
Cited "see"
Bradley v. State
See Archer v. State, 613 So.2d 446, 448 (Fla.1993) (holding that the independent act theory is inappropriate when the defendant created the situation and the victim’s death was a natural and foreseeable result of forces which the defendant set in motion).
Retrieving the full opinion text from the archive…
Robin Lee ARCHER, Appellant,
v.
STATE of Florida, Appellee.
v.
STATE of Florida, Appellee.
78701.
Supreme Court of Florida.
Jan 28, 1993.
Per Curiam.
Cited by 80 opinions | Published
[*447] Nancy A. Daniels, Public Defender and David A. Davis, Asst. Public Defender, Second Judicial Circuit, Tallahassee, for appellant.
Robert A. Butterworth, Atty. Gen. and Barbara C. Davis, Asst. Atty. Gen., Daytona Beach, for appellee.
PER CURIAM.
Robin Lee Archer appeals his conviction of first-degree murder and his sentence of death. We have jurisdiction. Art. V, § 3(b)(1), Fla. Const. Although we affirm Archer's conviction, we vacate his sentence and remand for resentencing.[1]
According to the testimony presented at trial, Archer was fired from his job at an auto parts store in March 1990. The following January he convinced his cousin, seventeen-year-old Pat Bonifay, to kill the clerk he apparently blamed for his having been fired. Bonifay testified that Archer told him to rob the store to hide the motive for the killing and to wear a ski mask and gloves and also told him the location of the store's cash box and emergency exit. Bonifay borrowed a handgun from a friend who gave the gun to Archer to give to Bonifay.
Bonifay talked two friends into helping him, and the trio went to the parts store on Friday night, January 24, 1991. Bonifay could not go through with the murder, however, and they left the store. The next day Archer got after Bonifay for not killing the clerk, and the trio went back to the store that night. Bonifay shot the clerk and he and one of his friends crawled into the store through the night parts window. After opening the cash boxes, Bonifay shot the clerk in the head twice as he lay on the floor begging for his life. Archer later refused to pay Bonifay because he killed the wrong clerk.
Bonifay confessed to several people, one of whom informed the authorities, resulting in the arrest of Archer, Bonifay, and Bonifay's two friends. The defendants were tried separately, and Archer's jury convicted him of first-degree murder. The judge agreed with the jury's recommendation and sentenced him to death.[2]
As his first point on appeal, Archer argues that his motion for judgment of acquittal should have been granted because the victim's murder was independent of the[*448] agreed-upon plan to kill a different clerk. For an issue to be preserved for appeal, however, it "must be presented to the lower court and the specific legal argument or ground to be argued on appeal must be part of that presentation if it is to be considered preserved." Tillman v. State, 471 So.2d 32, 35 (Fla. 1985). Archer did not make the instant argument in the trial court, and, therefore, this issue has not been preserved for appellate review.
Even if the issue had been preserved, we would find that it had no merit. As this Court has previously stated:
The law, as well as reason, prevents [a defendant] from taking advantage of his own wrong doing, or excusing himself when this unlawful act, if committed by [a defendant], strikes down an unintended victim. The original malice as a matter of law is transferred from the one against whom it was entertained to the person who actually suffered the consequences of the unlawful act.
Coston v. State, 139 Fla. 250, 253-54, 190 So. 520, 522 (1939); Provenzano v. State, 497 So.2d 1177 (Fla. 1986), cert. denied, 481 U.S. 1024, 107 S.Ct. 1912, 95 L.Ed.2d 518 (1987); Parker v. State, 458 So.2d 750 (Fla. 1984), cert. denied, 470 U.S. 1088, 105 S.Ct. 1855, 85 L.Ed.2d 152 (1985). Bonifay testified that he knew neither of the clerks and that he did not know that he killed the wrong one until Archer told him. Archer created the situation, and the victim's death was a natural and foreseeable result of Archer's actions. Bonifay's killing the victim was not an independent act for which Archer can deny responsibility. Compare Bryant v. State, 412 So.2d 347 (Fla. 1982) (victim's death was outside the common design of the original felonious collaboration). Therefore, the evidence is sufficient to support Archer's conviction of first-degree murder.
At the penalty-phase charge conference Archer argued that the jury should not be instructed on the heinous, atrocious, or cruel aggravator because that aggravator could not be applied vicariously to him. In Omelus v. State, 584 So.2d 563 (Fla. 1991), we held that a defendant who arranges for a killing but who is not present and who does not know how the murder will be accomplished cannot be subjected vicariously to the heinous, atrocious, or cruel aggravator. Here, Archer knew that Bonifay would use a handgun to kill the victim; he did not know, however, that the victim would be shot four times or that he would die begging for his life. Witnesses testified to the manner of the victim's death, and the prosecutor argued the applicability of this aggravator. On the facts of this case we are unable to say that the error in instructing on and finding this aggravator is harmless. Therefore, we vacate Archer's death sentence and direct the trial court to empanel a jury and conduct a new sentencing proceeding.[3]
It is so ordered.
BARKETT, C.J., and OVERTON, McDONALD, SHAW, GRIMES, KOGAN and HARDING, JJ., concur.
1 The jury also convicted Archer of armed robbery and grand theft. Archer does not challenge these convictions, and, because they are supported by the evidence, we affirm them.
2 Bonifay's jury also convicted him of first-degree murder, and his appeal of that conviction and his resultant death sentence is pending before this Court. Bonifay v. State, no. 78,724.
3 Due to this holding, we do not address the other issues raised on appeal.