Elliot v. State, 1D09-3010.

CourtCourt of Appeal of Florida (US)
Citation49 So.3d 269
Docket NumberNo. 1D09-3010.,1D09-3010.
PartiesShawn Wayne ELLIOT, Appellant, v. STATE of Florida, Appellee.
Decision Date08 December 2010
49 So.3d 269

Shawn Wayne ELLIOT, Appellant,
v.
STATE of Florida, Appellee.


No. 1D09-3010.

District Court of Appeal of Florida,
First District.


Aug. 31, 2010.
Rehearing Denied Dec. 8, 2010.

49 So.3d 269

Nancy A. Daniels, Public Defender, and G. Kay Witt, Assistant Public Defender, Tallahassee, for Appellant.

Bill McCollum, Attorney General, and Michael T. Kennett, Assistant Attorney General, Tallahassee, for Appellee.

PER CURIAM.

The appellant, Shawn Wayne Elliot, appeals his judgment and sentence for second-degree murder. He argues on appeal that the trial court fundamentally

49 So.3d 270
erred by failing to specifically instruct the jury that the State had the burden to prove beyond a reasonable doubt that the killing was not an act of justifiable or excusable homicide. We reject this argument for the reasons that follow and affirm.

The appellant was charged by indictment with the premeditated murder of Ira Dixon. The State's theory was that the appellant, fueled by alcohol and drugs and the fact that Dixon was hitting on his girlfriend, intentionally shot and killed Dixon. The appellant's only defense was that the State did not prove beyond a reasonable doubt that a crime was committed or that he was the one who committed the crime.

The State provided the jury instructions and the defense had the opportunity to review and make any objections. Without objection, the trial court instructed the jury on first-degree murder as well as the lesser crimes of second-degree murder and manslaughter. The trial court also gave the jury the standard instructions on excusable and justifiable homicide and on burden of proof. The jury found the appellant guilty of the lesser-included offense of second-degree murder.

By not objecting to the jury instructions at trial, the appellant failed to preserve this issue for appellate review. See State v. Delva, 575 So.2d 643, 644-45 (Fla.1991). On appeal, the appellant argues the jury instructions constituted fundamental error. This Court reviews the issue of unpreserved fundamental error under the de novo standard. See Beckham v. State, 884 So.2d 969, 970 (Fla. 1st DCA 2004).

Fundamental error is error which reaches "down into the validity of the trial itself to the extent that a verdict of guilty could not have been obtained without the assistance of the alleged error." See Delva, 575 So.2d at 644-45 (quotation omitted). In the context of jury instructions, fundamental error occurs only when an omission is pertinent or...

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25 cases
  • Burns v. State, 1D13–0033.
    • United States
    • Court of Appeal of Florida (US)
    • June 22, 2015
    ...court is a question of law. “This Court reviews the issue of unpreserved fundamental error under the de novo standard.” Elliot v. State, 49 So.3d 269, 270 (Fla. 1st DCA 2010). “[W]here the trial court fails to correctly instruct on an element of the crime over which there is dispute, and th......
  • Montgomery v. Sec'y, Dep't of Corr.
    • United States
    • United States District Courts. 11th Circuit. United States District Court of Middle District of Florida
    • April 10, 2020
    ...case, State v. Montgomery, 39 So. 3d 252 (Fla. 2010), should take precedence over the rule of the court set forth in Elliott v. State, 49 So. 3d 269 (Fla. 1st DCA 2010) (per curiam), rev. denied, 69 So. 3d 277 (Fla. 2011) and Mosansky v. State, 33 So. 3d 756 (Fla. 1st DCA 2010) (per curiam)......
  • Mohammed v. State
    • United States
    • Court of Appeal of Florida (US)
    • December 11, 2020
    ...they have the effect of legally excusing the defendant from the act that would otherwise be a criminal offense." Elliot v. State , 49 So. 3d 269, 270 (Fla. 1st DCA 2010). We believe that this approach is well-reasoned, and in the context of attempted second-degree murder, the introductory i......
  • Smith v. State , 1D10–3241.
    • United States
    • Court of Appeal of Florida (US)
    • December 30, 2011
    ...Prudent v. State, 974 So.2d 1142, 1144 (Fla. 3d DCA 2008). We review de novo a claim of fundamental error. See Elliot v. State, 49 So.3d 269, 270 (Fla. 1st DCA 2010). To the extent the trial court gave the Florida standard jury instructions on the justifiable use of non-deadly force, Appell......
  • Request a trial to view additional results
2 books & journal articles
  • The trial (conduct of trial, jury instructions, verdict)
    • United States
    • James Publishing Practical Law Books The Florida Criminal Cases Notebook. Volume 1-2 Volume 1
    • April 30, 2021
    ...of the manslaughter instruction, which was a two-step lesser of charged first-degree murder, is not fundamental error. Elliot v. State, 49 So. 3d 269 (Fla. 1st DCA 2010) When defense counsel agrees to jury instructions during a charge conference, he acquiesces to the instructions and any er......
  • Appeals
    • United States
    • James Publishing Practical Law Books The Florida Criminal Cases Notebook. Volume 1-2 Volume 1
    • April 30, 2021
    ...of the manslaughter instruction, which was a two-step lesser of charged first-degree murder, is not fundamental error. Elliot v. State, 49 So. 3d 269 (Fla. 1st DCA 2010) Where the court properly admits evidence from several witnesses as child abuse hearsay over an objection that the evidenc......

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