Williams v. State

• Decision Date: 30 June 1981
• Docket Number: No. 80-277,80-277
• Citation: 400 So.2d 542
• Parties: Anthony L. WILLIAMS, Appellant, v. The STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 542

400 So.2d 542

Anthony L. WILLIAMS, Appellant, v. The STATE of Florida, Appellee.

No. 80-277.

District Court of Appeal of Florida, Third District.

June 30, 1981.

Bennett H. Brummer, Public Defender and Michael Zelman, Asst. Public Defender, for appellant.

Jim Smith, Atty. Gen. and Anthony C. Musto, Asst. Atty. Gen., for appellee.

Before SCHWARTZ, DANIEL S. PEARSON and FERGUSON, JJ.

SCHWARTZ, Judge.

On July 16, 1979, two men with handguns held up a Burger King restaurant in Dade County. After a trial at which the sole issue was identity and upon instructions to which the defendant did not object, the jury found the appellant Williams guilty of the armed robbery. This appeal from the resulting adjudication and sentence to life imprisonment raises primarily the important question of whether the omission from the definition of robbery in the jury charge of the intent to deprive held in Bell v. State ¹ to be an element of that crime constitutes fundamental error. ² Because the existence of that intent was not in question at the trial, we hold that no such error was committed.

The issue in this case is common to all, or nearly all, robbery convictions secured in Florida between 1976 and 1980. It arises because the standard jury instruction given by the trial court on the crime of robbery under Section 812.13, Florida Statutes (1975), as amended by Chapter 74-383, § 38, Laws of Florida, although generally approved by the supreme court itself, see Standard Jury Instructions in Criminal Cases, 327 So.2d 6 (Fla.1976), did not include incorrectly, as it turned out the intent element required by Bell. ³ The appellant contends here that this mistake fatally infects the judgment below and requires reversal notwithstanding his failure to raise the issue at trial. ⁴ Williams expressly concedes on appeal, as he implicitly admitted below, that whoever held up the Burger King fully intended to take its property, and thus that there was no jury issue that the state had met its burden of proof concerning the subject of the defect in the instruction. He claims, however, as he must, that the omission of any element of the crime of which a defendant is convicted necessarily and invariably constitutes fundamental error regardless of the circumstances. We find that such a rule does not exist and that fundamental error occurs in such a situation only when an omission or error in the definition of a crime is pertinent or material to what must actually be considered by the jury in order to convict. Since that patently is not the case here, Williams' argument cannot be accepted.

Any discussion of the preservation-fundamental error issue in general, and as it relates to unchallenged jury charges in particular, must commence with Castor v. State, 365 So.2d 701 (Fla.1978). There, the court re-emphasized the necessity that any such alleged errors be timely asserted below. The court said that this was "invariably required," subject only to the "limited exception" which arises in the "rare cases of fundamental error" (e. s.), 365 So.2d at 703, 704. See also, State v. Cumbie, 380 So.2d 1031 (Fla.1980); Clark v. State, 363 So.2d 331 (Fla.1978). Castor defines, in turn, fundamental error in the most restricted manner:

For an error to be so fundamental that it may be urged on appeal though not properly preserved below, the asserted error must amount to a denial of due process. State v. Smith, 240 So.2d 807 (Fla.1970).

365 So.2d at 704, note 7. As applied to this case, Castor could easily serve as the end, as well as the beginning, of our inquiry. For, on the face of the matter, it clearly cannot be said that a defendant's right to due process that is, to an essentially fair trial, see State v. Jones, 377 So.2d 1163 (Fla.1979); Peterson v. State, 376 So.2d 1230 (Fla. 4th DCA 1979), cert. denied, 386 So.2d 642 (Fla.1980) is compromised in any way by the failure to tell the jury that the state must prove something which undisputedly has in fact been established. ⁵

In the particular area with which we are concerned, the decided Florida cases fully support this conclusion. While there are several broad references to an affirmative duty of the trial court to instruct the jury on the elements of the crime charged, e. g., Croft v. State, 117 Fla. 832, 158 So. 454, 456 (1935); Whitehead v. State, 245 So.2d 94, 99 (Fla. 2d DCA 1971), the fact is that every such omission or misstatement ⁶ which has actually been found to constitute fundamental error concerned a critical and disputed jury issue in the case. Croft v. State, supra (omission of then-element of armed robbery that, if resisted, defendant have intent to kill or maim person assaulted); Gerds v. State, 64 So.2d 915 (Fla.1953) (omission of intent element of breaking and entering with intent to commit rape; "(f)or all that appears under this charge, the jury could have had for its sole determination the question of whether defendant broke and entered the dwelling house of the prosecutrix and nothing else."); Anderson v. State, 276 So.2d 17 (Fla.1973) (failure to define premeditation in first degree murder case); Polk v. State, 179 So.2d 236 (Fla. 2d DCA 1965) (same); Motley v. State, 155 Fla. 545, 20 So.2d 798 (1945) (omission from self-defense instruction of right to resist if defendant believed himself in imminent danger of harm, although, as the evidence in the case showed, no actual assault was made; error "goes to the essence and entirety of the defense."); Whitehead v. State, supra (omission from definition of justifiable homicide of defense which "from appellant's version of the tragedy ... was relevant to the exculpatory argument ... that he was lawfully attempting to 'keep the peace' "); Bagley v. State, 119 So.2d 400 (Fla. 1st DCA 1960) (omission from justifiable homicide instruction of right to lawful defense of relative; defendant claimed she was acting in defense of son); Canada v. State, 139 So.2d 753 (Fla. 2d DCA 1962) (omission of intent to deprive element from cattle stealing instruction; "the defense ... was ... that (the defendant) had no intention of stealing the cattle, but that his actions were the result of instructions received from the agent of the owner..."); Ingram v. State, 393 So.2d 1187 (Fla. 3d DCA 1981) (omission of disputed and basic element of receipt of value for check from instructions on felony charge of obtaining property through worthless check).

On the other hand, when it does not appear that the subject of the defective charge was an issue at the trial, our courts have repeatedly declined to reverse in the absence of timely objection. Paul v. State, 209 So.2d 464 (Fla. 3d DCA 1968) (failure to instruct jury "as to each and every element of the offense of grand larceny"); Simpkin v. State, 363 So.2d 45 (Fla. 3d DCA 1978) (omission of reference to or definition of dwelling in prosecution for burglary of dwelling; uncontroverted evidence that structure in question was in fact dwelling; "(n)o issue was raised on this point ..."); Waters v. State, 298 So.2d 208 (Fla. 2d DCA 1974) (omission from robbery instruction of intention to permanently deprive; evidence "is overwhelming that the robbers took the $80,000 with the intention of keeping it, and did in fact keep it."); Hamilton v. State, 152 So.2d 793 (Fla. 2d DCA 1963), cert. denied, 156 So.2d 388 (Fla.1963) (failure to define excusable homicide, where evidence "did not bespeak a basic necessity requiring ... instruction"); see also, Bolen v. State, 375 So.2d 891 (Fla. 4th DCA 1979) (unnecessary to consider propriety of charge concerning essential element of crime; no more than harmless error involved because "there was no issue or contention whatever as to the subject matter of the challenged instruction"); Younghans v. State, 97 So.2d 31 (Fla. 3d DCA 1957) (same). An analysis of these cases reveals, we think, that the Florida rule is not, as Williams contends, that a failure to instruct on every element is fundamental error, but rather, as stated in Croft, supra, at 158 So. 455, that "a charge attempting to define the offense which does not cover material elements of the offense is necessarily misleading and prejudicial to the accused" (e. s.); accord, Ingram v. State, supra, at 393 So.2d 1188. The "error" in question here obviously does not fall within this category.

While this distinction between material and immaterial omissions has not previously been articulated in this fashion in Florida, numerous cases from other jurisdictions have done just that. Many are collected in Annot., Comment Note Duty in Instructing Jury in Criminal Prosecution to Explain and Define Offense Charged, 169 A.L.R. 315 (1947), where they are summarized as follows.

It appears to be generally, although not universally, established that an omission from the charge in a criminal case of a particular element of the offense or an erroneous instruction with respect thereto will not be regarded as reversible error ⁷ if from the pleadings and the evidence in the case it is clear that there was no issue between the parties with respect to such element.

In accordance with this principle, several courts presented with the identical issue involved here have squarely held, as we do, that the omission of the intent element from a robbery instruction is not fundamental error in the absence of a real dispute on that question. Thus, in State v. Evans, 109 Ariz. 491, 512 P.2d 1225 (1973), the defendant was convicted of assault with intent to commit robbery. The trial court, without objection, did not state that a necessary element of the crime is an intent to permanently deprive the owner of his property. The court rejected a claim of fundamental error, stating:

When the evidence makes intent the battleground of the case, full and explicit instructions on the issue are required. State v. Spratt, 265 N.C. 524, 144 S.E.2d 569 (1965). On the other hand, when no evidence is offered to raise a direct issue as to intent, and the...