Roberts v. State, No. 4D17-3877

• Court: Court of Appeal of Florida (US)
• Writing for the Court: Gross, J.
• Citation: 299 So.3d 9
• Parties: Cornell ROBERTS, Appellant, v. STATE of Florida, Appellee.
• Docket Number: No. 4D17-3877
• Decision Date: 01 April 2020

299 So.3d 9

Cornell ROBERTS, Appellant,
v.
STATE of Florida, Appellee.

No. 4D17-3877

District Court of Appeal of Florida, Fourth District.

[April 1, 2020]

Carey Haughwout, Public Defender, and J. Woodson Isom, Assistant Public Defender, West Palm Beach, for appellant.

Ashley Moody, Attorney General, Tallahassee, and Jonathan P. Picard, Assistant Attorney General, West Palm Beach, for appellee.

Gross, J.

Due to a change in the law implemented by the Florida Supreme Court, we withdraw our earlier opinion in this case and affirm the conviction.

Cornell Roberts was charged with attempted first-degree murder. Following a jury trial, he was convicted of the lesser included offense of attempted second-degree murder. We reversed the conviction

299 So.3d 10

and remanded for a new trial on the State's concession that "the trial court's failure to instruct the jury on the necessarily included offense of attempted manslaughter by act amounted to fundamental error because that offense is one step removed from the convicted offense of attempted second degree murder." Roberts v. State , 268 So. 3d 147, 147 (Fla. 4th DCA 2018).

After the opinion issued, the State timely moved to stay issuance of the mandate pending the resolution of Knight v. State , 267 So. 3d 38 (Fla. 1st DCA 2018), a case then pending before the Florida Supreme Court. We granted the motion.

Last year, the Supreme Court decided Knight v. State , 286 So. 3d 147 (Fla. 2019). Based on that decision, the State urged this court to withdraw our previous opinion and affirm the defendant's conviction. The defendant responded, maintaining that reversal is still appropriate.

FACTS

Cornell Roberts was charged with attempted first-degree murder. The jury was given the following instruction:

3.4 WHEN THERE ARE LESSER INCLUDED CRIMES OR ATTEMPTS

In considering the evidence, you should consider the possibility that although the evidence may not convince you that the defendant committed the main crime of which he is accused, there may be evidence that he committed other acts that would constitute a lesser included crime or crimes. Therefore, if you decide that the main accusation has not been proved beyond a reasonable doubt, you will next need to decide if the defendant is guilty of any lesser included crime.

The lesser crimes indicated in the definition of Attempted Murder — First Degree:

Attempted Murder — Second Degree

Aggravated Battery

Defense counsel did not object to the instruction given. The jury found the defendant guilty of the lesser included offense of Attempted Murder — Second Degree.

The jury instructions given were incorrect because attempted manslaughter by act was not included in the list of lesser included crimes. Attempted manslaughter by act is one step removed from the offense of conviction, attempted second-degree murder.

The sole issue on appeal is whether the trial court committed fundamental error when it failed to instruct the jury on the lesser included crime of attempted manslaughter by act.

DISCUSSION

Whether the trial court committed fundamental error by failing to instruct the jury on a lesser included offense is a pure question of law subject to de novo review. Walton v. State , 208 So. 3d 60, 64 (Fla. 2016).

A criminal defendant is entitled to an accurate instruction on lesser included offenses. State v. Montgomery , 39 So. 3d 252, 258 (Fla. 2010). Jury instruction errors are subject to the contemporaneous objection rule. Knight , 286 So. 3d at 151. This means that in "the absence of a contemporaneous objection at trial, a jury instruction error...