Supreme Court of Florida
____________
No. SC15-1320
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JESSIE CLAIRE ROBERTS,
Petitioner,
vs.
STATE OF FLORIDA,
Respondent.
[March 1, 2018]
LABARGA, C.J.
Jessie Claire Roberts seeks review of the decision of the First District Court
of Appeal in Roberts v. State, 168 So. 3d 252 (Fla. 1st DCA 2015), on the ground
that it expressly and directly conflicts with this Court’s decision in Walton v. State,
208 So. 3d 60 (Fla. 2016), on the issue of whether the failure to instruct on the
necessarily lesser included offense of manslaughter by act constitutes fundamental
error. We have jurisdiction. See art. V, § 3(b)(3), Fla. Const. For the reasons
explained below, we quash the decision below to the extent it is inconsistent with
Walton and remand to the First District for proceedings consistent with this
opinion. Because we conclude Roberts is entitled to a new trial pursuant to
Walton, we decline to address the remaining issues.
FACTS AND PROCEDURAL BACKGROUND
Roberts was charged with attempted second-degree murder, sale or
possession with intent to sell cannabis while armed, carrying a concealed firearm,
failure of defendant on bail to appear, and possession of less than twenty grams of
cannabis. She pled guilty to carrying a concealed firearm and possession of less
than twenty grams of cannabis. A jury found her guilty of the remaining counts,
specifically finding that she was guilty of attempted second-degree murder with
possession and discharge of a firearm causing great bodily harm.
The district court described the facts established during trial:
The State presented evidence that appellant shot the victim,
Catrina Howard, in the face during a dispute over a marijuana
transaction. Howard testified that her cousin, Jason Marks, was
attempting to purchase marijuana from appellant, but they got into a
verbal dispute over payment. Howard stated that appellant then
pulled out a gun. Howard testified she became defensive for both
herself and her cousin, so she punched appellant once in the face. In
response, she stated appellant raised the gun and pointed it at her, and
she put up her hands defensively in front of her face. Appellant then
fired once, shooting Howard in the neck and hand. Howard testified
that at the time of the shooting, she was standing ten feet away from
appellant, she was not advancing on appellant or trying to hit her
again, and no one was threatening appellant. Marks gave testimony
consistent with that of Howard. A passerby also gave similar
testimony that he saw appellant shoot the victim, who was not moving
aggressively towards appellant.
Appellant testified in her own defense. She stated that she had
the gun to her side and was backing away from Howard and Marks,
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trying to retreat, when Howard punched her. Appellant testified she
raised the gun, aimed it at Howard, and fired because she believed
doing so was necessary to protect herself. She stated she believed that
Howard and Marks would have “jumped” her if she had not shot
Howard.
The jury was instructed on the charged offense of attempted
second-degree murder, as well as the lesser-included offenses of
aggravated battery and aggravated assault. Counsel did not request an
instruction on attempted manslaughter, and no such instruction was
given. The jury found appellant guilty of attempted second-degree
murder as charged.
Roberts, 168 So. 3d at 253-54.
Roberts appealed her judgment and sentence to the First District, raising
three issues: (1) the trial court committed fundamental error when it failed to
instruct the jury on the necessarily lesser included offense of attempted
manslaughter by act;1 (2) the trial court committed fundamental error in giving
contradictory instructions on the duty to retreat, which misstated the law and
negated Roberts’ only defense; and (3) the trial court erred in denying Roberts’
motion for judgment of acquittal as to the second-degree murder charge. See id. at
253. The First District rejected Roberts’ claims and affirmed her convictions and
sentences. Id.
1. The offense of attempted voluntary manslaughter was renamed attempted
manslaughter by act in In re Standard Jury Instructions in Criminal Cases—
Instruction 6.6, 132 So. 3d 1124, 1126 (Fla. 2014). Although the offense was
titled attempted voluntary manslaughter at the time of the crime in this case, for
purposes of this opinion, we refer to the offense as attempted manslaughter by act.
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This review follows.
ANALYSIS
Roberts argues that the trial court fundamentally erred by failing to instruct
the jury on the necessarily lesser included offense of attempted manslaughter by
act. This raises a pure question of law subject to de novo review. Walton, 208 So.
3d at 64 (citing Griffin v. State, 160 So. 3d 63, 67 (Fla. 2015)). Because Roberts
did not object to these instructions, we review for fundamental error. See State v.
Delva, 575 So. 2d 643 (Fla. 1991) (stating jury instructions “are subject to the
contemporaneous objection rule, and, absent an objection at trial, can be raised on
appeal only if fundamental error occurred”).
In order for jury instructions to constitute fundamental error, “the error must
reach 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” and
“occurs only when the omission is pertinent or material to what the jury must
consider in order to convict.” State v. Delva, 575 So. 2d 643, 644-45 (Fla. 1991)
(quoting Brown v. State, 124 So. 2d 481, 484 (Fla. 1960), and Stewart v. State, 420
So. 2d 862, 863 (Fla. 1982)). “Additionally, the fundamental error doctrine
‘should be applied only in rare cases where a jurisdictional error appears or where
the interests of justice present a compelling demand for its application.’ ”
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Martinez v. State, 981 So. 2d 449, 455 (Fla. 2008) (emphasis removed) (quoting
Smith v. State, 521 So. 2d 106, 108 (Fla. 1988)).
Roberts asserts the trial court committed fundamental error by failing to
instruct the jury on attempted manslaughter by act, a necessarily lesser included
offense of attempted second-degree murder. We agree.
A necessarily lesser included offense is one “in which the statutory
elements of the lesser included offense are always subsumed within those of the
charged offense.” Sanders v. State, 944 So. 2d 203, 206 (Fla. 2006). In other
words, “[w]hen the commission of one offense always results in the commission of
another, then the latter is an inherent component of the former” and is a necessarily
lesser included offense. State v. Weller, 590 So. 2d 923, 926 (Fla. 1991). It is well
established that the jury must be instructed on “any lesser offense all the elements
of which are alleged in the accusatory pleadings and supported by the evidence
adduced at trial.” Id. Our precedent is likewise clear that a “trial judge has no
discretion in whether to instruct the jury on a necessarily lesser included offense.
Once the judge determines that the offense is a necessarily lesser included offense,
an instruction must be given.” Montgomery v. State, 39 So. 3d 252, 259 (Fla.
2010) (quoting State v. Wimberly, 498 So. 2d 929, 932 (Fla. 1986)).
Attempted manslaughter by act is a necessarily lesser included offense of
attempted second-degree murder. Walton, 208 So. 3d at 64. Therefore, the trial
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court was required to give an instruction for attempted manslaughter by act when it
gave the instruction for attempted second-degree murder. Id.
Here, the First District determined that a trial court’s failure to instruct on
the necessarily lesser included offense of attempted manslaughter by act does not
constitute fundamental error in a noncapital case where such an instruction is not
requested. Roberts, 168 So. 3d at 258. However, subsequent to the district court’s
decision, Walton was issued. In Walton, this Court determined that the trial court’s
failure to give an instruction for attempted manslaughter where the defendant was
charged with attempted second-degree murder constituted fundamental error, even
though the defendant did not request the attempted manslaughter instruction. 208
So. 3d at 65. We explained:
We have repeatedly held that the failure to correctly instruct the jury
on a necessarily lesser included offense constitutes fundamental error.
See, e.g., Williams v. State, 123 So. 3d 23, 27 (Fla. 2013) (holding that
fundamental error occurs when the trial judge gives an incorrect
instruction on the necessarily lesser included offense of attempted
manslaughter for a defendant convicted of attempted second-degree
murder); Montgomery, 39 So. 3d at 259 (same). If giving an incorrect
instruction on a necessarily lesser included offense constitutes
fundamental error, then a fortiori giving no instruction at all likewise
constitutes fundamental error.
Id.
The relevant facts in the present case are nearly identical to those in Walton.
Here, Roberts was charged with attempted second-degree murder, defense counsel
did not request a jury instruction on the necessarily lesser included offense of
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attempted manslaughter, and the trial court did not give such an instruction. Thus,
like Walton, the trial court’s failure to give the attempted manslaughter by act
instruction here constitutes fundamental error. Accordingly, we hold Roberts is
entitled to a new trial.
CONCLUSION
We quash the decision below to the extent it is inconsistent with Walton and
remand to the First District for proceedings consistent with this opinion.
It is so ordered.
LABARGA, C.J., and PARIENTE, LEWIS, and QUINCE, JJ., concur.
POLSTON, J., dissents with an opinion, in which CANADY and LAWSON, JJ.,
concur.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND,
IF FILED, DETERMINED.
POLSTON, J., dissenting.
Unlike the majority, I do not believe that the trial court’s failure to give an
unrequested attempted manslaughter by act instruction constitutes fundamental
error. I would recede from this Court’s holding in Walton v. State, 208 So. 3d 60
(Fla. 2016).
Fundamental error is error that “reach[es] 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.” State v. Delva, 575 So. 2d 643, 644-45 (Fla. 1991)
(quoting Brown v. State, 124 So. 2d 481, 484 (Fla. 1960)). And as Justice Canady
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has explained, “[i]n any case where the evidence supports the jury’s verdict of guilt
on the charged offense and no error was made in the instructions regarding that
offense, it is hard to fathom how an error in an instruction [(or a failure to give an
instruction)] regarding a lesser included offense would properly be considered an
error without which ‘a verdict of guilt could not have been obtained.’ ” Haygood
v. State, 109 So. 3d 735, 749 (Fla. 2013) (Canady, J., dissenting).
Here, because the evidence supports the jury’s verdict of attempted second-
degree murder and the jury was properly instructed regarding attempted second-
degree murder, the defendant is not entitled to a new trial based upon the failure to
instruct the jury on the lesser included offense. “No defendant has the right to a
trial in which the judge facilitates the jury’s acting in disregard of the law,” which
is what the majority’s decision (and the jury pardon doctrine upon which it is
based) promotes. Id.
Accordingly, I respectfully dissent.
CANADY and LAWSON, JJ., concur.
Application for Review of the Decision of the District Court of Appeal – Direct
Conflict of Decisions
First District - Case No. 1D14-321
(Duval County)
Andy Thomas, Public Defender, and Maria Ines Suber, Assistant Public Defender,
Second Judicial Circuit, Tallahassee, Florida,
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for Petitioner
Pamela Jo Bondi, Attorney General, Trisha Meggs Pate, Bureau Chief, Angela R.
Hensel and Robert “Charlie” Lee, Assistant Attorneys General, Tallahassee,
Florida,
for Respondent
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