Taylor v. State, 4D10–4007.
| Decision Date | 15 May 2013 |
| Docket Number | No. 4D10–4007.,4D10–4007. |
| Citation | 114 So.3d 355 |
| Parties | Chad Lamont TAYLOR, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
OPINION TEXT STARTS HERE
Carey Haughwout, Public Defender, and Nan Ellen Foley, Assistant Public Defender, West Palm Beach, for appellant.
Pamela Jo Bondi, Attorney General, Tallahassee, and Don M. Rogers, Assistant Attorney General, West Palm Beach, for appellee.
We affirm appellant's conviction and sentence for robbery with a weapon. He claims fundamental error where the trial court failed to give an afterthought instruction, as the theft upon which the robbery was based occurred after the battery of the victim. See Perkins v. State, 814 So.2d 1177, 1179 (Fla. 4th DCA 2002). His defense at trial, however, was one of misidentification. Claiming that the theft was an afterthought was inconsistent with that defense. See Wright v. State, 705 So.2d 102, 104 (Fla. 4th DCA 1998) (). Moreover, appellant never requested an afterthought instruction. Thus, it cannot be a fundamental error to fail to give an unrequested instruction inconsistent with his defense at trial.
As to appellant's PRR sentence, we affirm based upon Louzon v. State, 78 So.3d 678 (Fla. 5th DCA 2012), the reasoning of which we adopt. Here, appellant qualified as a PRR, because he committed the present offense within three years after his release from a federal correctional facility. Appellant was still in federal custody,even though housed in a Palm Beach County jail in order to perform substantial assistance. His release from federal custody while housed at the county jail still constitutes constructive release from a federal correctional facility for purposes of section 775.082(9)(a)(1) 1, Florida Statutes. As pointed out in Louzon,
To accept [the defendant's] argument would place form over substance and would be inconsistent with the Legislature's clear intent to provide for a greater sentence for individuals who commit a qualifying offense within three years of completion of a previously imposed prison sentence. To accept [his] argument would also mean that in order for the State to ensure that a defendant [in the defendant's] situation was eligible for subsequent PRR sentencing, it would have to physically transfer an individual from jail to a Department of Corrections facility [or a federal correctional...
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Burns v. State
...erroneous jury instruction cannot be fundamental unless it pertains to a matter genuinely at issue in the case.”); Taylor v. State, 114 So.3d 355, 355 (Fla. 4th DCA 2013) (rejecting claim of fundamental error for failure to give an afterthought instruction with regard to robbery because the......
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...DCA May 12, 2017), which certified conflict with the decisions in State v. Wright , 180 So.3d 1043 (Fla. 1st DCA 2015), Taylor v. State , 114 So.3d 355 (Fla. 4th DCA 2013), and Louzon v. State , 78 So.3d 678 (Fla. 5th DCA 2012). The certified conflict concerns the construction of one elemen......
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...First, Fourth, and Fifth Districts had addressed the issue. See State v. Wright, 180 So.3d 1043 (Fla. 1st DCA 2015) ; Taylor v. State, 114 So.3d 355 (Fla. 4th DCA 2013) ; Louzon v. State, 78 So.3d 678 (Fla. 5th DCA 2012). The defendants in Wright and Louzon were similarly situated to Taylor......
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...not satisfy the requirements of §775.082(9)(a)1. Disapproving State v. Wright , 180 So. 3d 1043 (Fla. 1st DCA 2015), Taylor v. State , 114 So. 3d 355 (Fla. 4th DCA 2013), and Louzon v. State , 78 So. 3d 687 (Fla. 5th DCA 2012). State v. Lewars, 259 So. 3d 793 (Fla. 2018) Court may order tha......