Wilson v. State
| Decision Date | 21 June 2006 |
| Docket Number | No. 3D06-1027.,3D06-1027. |
| Citation | 933 So.2d 598 |
| Court | Florida District Court of Appeals |
| Parties | Roy Lee WILSON, Petitioner, v. The STATE of Florida, Respondent. |
Roy Lee Wilson, in proper person.
Charles J. Crist, Attorney General, for respondent.
Before GREEN, FLETCHER, and RAMIREZ, JJ.
Roy Lee Wilson seeks a writ of habeas corpus alleging that his trial counsel rendered ineffective assistance for failure to raise the claim that the trial court fundamentally erred when it used the conjunction "and/or" in the jury instructions. We deny the petition finding that the use of the conjunction "and/or" did not result in fundamental error.
The State charged Wilson with two counts of battery on a law enforcement officer and one count of resisting arrest with violence. A jury convicted Wilson of two counts of battery on a law enforcement officer and one count of resisting arrest without violence, a lesser included offense. Subsequently, Wilson appealed his conviction and sentence to this Court and we per curiam affirmed.
The jury instruction for resisting arrest with violence read as follows:
Before you can find the defendant guilty of Resisting Officer With Violence, the State must prove the following three elements beyond a reasonable doubt:
1. ROY LEE WILSON knowingly and willfully [resisted] or [obstructed] or [opposed] OFFICER A. MARTINEZ and/or OFFICER I. CASERO by [doing violence to him/her].
2. At the time OFFICER A. MARTINEZ and/or OFFICER I. CASERO were engaged in the [lawful execution of a legal duty].
3. At the time OFFICER A. MARTINEZ and/or OFFICER I. CASERO was an officer.
Similarly, the jury instruction for resisting arrest without violence read:
Before you can find the defendant guilty of Resisting Officer Without Violence, as a lesser included offense, the State must prove the following three elements beyond a reasonable doubt:
1. ROY LEE WILSON [resisted] or [obstructed] or [opposed] OFFICER A. MARTINEZ and/or OFFICER I. CASERO.
2. At the time OFFICER A MARTINEZ and/or OFFICER I. CASERO was engaged in the [lawful execution of a legal duty].
3. At the time OFFICER A. MARTINEZ and/or OFFICER I. CASERO was an officer.
Wilson argues that the use of "and/or" between the officers' names resulted in fundamental error, and that his counsel's failure to raise the claim resulted in constitutionally deficient performance because the outcome of the appellate proceeding would otherwise have been different. We disagree.
We first note that Wilson did not object to the jury instructions below. The claimed error thus was not preserved for appeal and, therefore, does not constitute reversible error unless we conclude that the error was fundamental. See Martinez v. State, 31 Fla. L. Weekly D1299, ___ So.2d ___, 2006 WL 1331498 (Fla. 3d DCA May 10, 2006). Although the use of the "and/or" conjunction in the jury instructions constitutes a valid basis upon which a conviction may be vacated, these cases usually involve the use of the "and/or" conjunction between the name of the...
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Dawson v. State
...did not constitute fundamental error when overwhelming evidence demonstrates the defendant's guilt); see also Wilson v. State, 933 So.2d 598, 599–600 (Fla. 3d DCA 2006) (explaining the “and/or” conjunction in no way prejudiced the defendant when the conjunction is placed between the names o......
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Croom v. State Of Fla.
...include the “and/or” conjunction between the names of victims in a jury instruction have ruled it is not. See e.g., Wilson v. State, 933 So.2d 598, 600 (Fla. 3d DCA 2006) (holding because the court placed the “and/or” conjunction between the names of the two victims rather than co-defendant......
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Dempsey v. State
...for appeal and, therefore, does not constitute reversible error unless we conclude that the error was fundamental.” Wilson v. State, 933 So.2d 598, 599 (Fla. 3d DCA 2006) (citation omitted). Courts must analyze the totality of the record to determine if an errant instruction is fundamental ......
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Lee v. The State Of Fla., 3D09-704.
...RAMIREZ, C.J., and GERSTEN and SALTER, JJ.PER CURIAM. Affirmed. Croom v. State, 36 So.3d 707 (Fla. 1st DCA 2010); Wilson v. State, 933 So.2d 598 (Fla. 3d DCA 2006). ...
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Crimes
...count of resisting an officer with violence, it is not error to place an “and/or” between the names of the officers. Wilson v. State, 933 So. 2d 598 (Fla. 3d DCA 2006) Fourth District Court of Appeal Juvenile adjudicated delinquent for (1) giving a false name to police officers and (2) for ......
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Avoiding fundamentally erroneous jury instructions: pointers for counsel in criminal trials and appeals.
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