The Florida Bar

Florida Bar Journal

  1. Home
  2. News & Events
  3. Florida Bar Journal
The Florida Bar Journal
February, 2018 Volume 92, No. 2
The Problem of Unpreserved Jury-Instruction Issues in Direct Criminal Appeals

by Richard Sanders

Page 26



This article addresses the problem of defendants in direct criminal appeals raising issues regarding jury instructions that were not preserved in the trial court. Florida courts have traditionally handled this problem with the paradigm that developed over many decades for use in all appeals, under which:

1) Preservation is required for three basic reasons: a) promoting judicial economy and order by encouraging the correction of errors in the trial court; b) keeping trial judges in their proper neutral role, which could be compromised by a lax preservation rule that encouraged judges to intervene sua sponte; and c) preventing sandbagging, which is defined as “[a] trial lawyer’s remaining cagily silent when a possible error occurs at trial”1 or even “intentionally inject[ing] error into the trial[,] and then await[ing] the outcome with the expectation that [an unfavorable outcome] will be automatically reversed;”2 but 2) relief is granted for some particularly serious unpreserved errors which Florida courts call fundamental errors provided that 3) the error was not “invited”; i.e., counsel did not deliberately cause or allow the error to occur, either as a legitimate trial tactic or to sandbag.3 However, there are good reasons not to strictly apply this paradigm in direct criminal appeals.

Criminal appeals are unique, primarily because criminal defendants have due process rights that other parties do not. This includes both specific rights — e.g., to require the [s]tate to prove all elements of the precise offense charged beyond reasonable doubt to a properly instructed jury — and a general right to effective assistance of counsel, with one of counsel’s primary duties being to insure that all these other rights are fully protected.

The public’s interest in criminal appeals, as compared with other types of appeals, is also unique and significant. With convictions after trials, appeals are almost automatic; and, if that appeal fails, collateral proceedings are readily available and often used. But if the defendant is indigent (as most are), all this is mostly cost free, which means the public pays. Social costs are incurred if courts refuse to address an unpreserved issue on direct appeal, only to later grant postconviction relief when the same issue is repackaged as a claim of ineffective assistance of trial counsel (IAOC).4

In light of these concerns, Florida courts have begun addressing unpreserved issues in criminal appeals by using a second paradigm: an IAOC claim (which is also unpreserved). IAOC claims have two elements: deficient performance (Were counsel’s actions reasonable?) and prejudice (a “reasonable probability that, absent the error,” the outcome would have been different).5 IAOC claims can be raised on direct appeal if both elements are “apparent on the face of the record.”6

Most IAOC claims are not so apparent. The prejudice element presents no unusual problems; appellate courts regularly address issues of the harm caused by both preserved and unpreserved errors. It is the deficient-performance element that causes the problem in direct appeals.

With most IAOC claims, the appellate record will be insufficient to address the deficient-performance element because, without an explanation of the reasons for the challenged acts of counsel, we cannot determine whether they were reasonable. But the record sometimes contains, from counsel’s own mouth, an explanation for those actions.7 The reasonableness of counsel’s actions can also be objectively determined when they are clearly based on ignorance of basic facts (e.g., what exactly is the defendant charged with8) or relevant law.9

Thus, in the present context, IAOC claims focus on the possible reasons for counsel’s failure to preserve the issue and, if there is no valid reason, the harm that error caused. As will be seen, the traditional paradigm, as applied in criminal context, essentially focuses on the same factors. The two paradigms should be merged into a single rule. Unpreserved jury-instruction issues should be addressed if it is clear in the record that 1) error occurred; 2) there is no valid tactical reason for counsel’s allowing that error to occur; and 3) counsel wasn’t sandbagging.

The first two elements intertwine. Counsel may believe there is good reason to let “error” occur (e.g., agreeing to a modification of a standard instruction because counsel believes it helps the defendant). Thus, whether something that drew no objection in the trial court was, from the defendant’s perspective, truly an error may depend on why counsel didn’t object. The second and third elements also intertwine to some degree; taken together, they ask whether it is possible that counsel knowingly and intentionally allowed the error to occur, either to sandbag or as what counsel believed was a reasonable trial tactic. For present purposes, the crucial point here is that, either way, the error was not the result of counsel’s mere negligence or ignorance of law.

But if it is clear to the appellate court that error did occur, and that no reasonable lawyer would have allowed that error to occur, and that counsel wasn’t sandbagging, then the court has, in effect, concluded that the issue has substantive merit. It should then determine whether the error was harmful. If the answer to any of these questions is unclear, the issue should be left for postconviction proceedings.

This proposed rule is the best way to prevent sandbagging, which (as discussed below) may be the primary reason for requiring preservation in criminal cases (particularly for jury-instruction issues). Because sandbagging is hard to detect, unpreserved issues should be addressed with a rule that discourages that practice. The proposed rule does this because it insures that, if relief is granted on an unpreserved error that counsel intentionally caused or allowed, counsel will be held responsible for the error’s occurrence.

The Traditional Appellate Paradigm for Unpreserved Issues
As noted above, the preservation rule serves three basic purposes: promoting judicial economy; keeping trial judges in their proper neutral role; and preventing sandbagging. In criminal appeals, these purposes are not of equal weight in all contexts.

Judicial economy is not promoted if, on direct appeal, the appellate court affirms on an issue only because the issue was not preserved, but then later grants postconviction relief when the same issue reemerges as an IAOC claim, based on counsel’s failure to preserve the issue. As to the rule’s purpose in preserving judicial neutrality, a trial judge’s role is not always one of pure passivity. Trial judges are not mere “fight promoter[s] who supply[] an arena [for] parties [to] fight it out”;10 they are also “oblig[ed] to see that justice is done,” to see that the “facts [are] properly developed [and] presented to the jury.”11 This includes the duty to “correctly charge the jury.”12 To the extent that the preservation rule is designed to give trial judges a chance to correct error, there is less need to strictly enforce the rule with regard to decisions that judges must make, even if no one asks or objects. The giving of accurate instructions is such a duty.

The preservation rule’s anti-sandbagging purpose seems to apply equally in all contexts, which makes this the most compelling reason to require preservation in criminal cases. This is especially true with instruction issues, which seem to present the most potentially fruitful opportunity for sandbagging.

As to the traditional exception to the preservation rule, an error is considered to be fundamental if it “goes to the foundation of the case”13 or “so damaged the fairness of the trial that the public’s interest in our system of justice requires a new trial.”14 Correcting fundamental error is “an unrenunciable judicial duty [because] some errors are of such a magnitude that failure to correct them would undermine the integrity of our system of justice.”15 In sum, the preservation rule has both some flexibility and an exception that are as important as the rule itself.

The third pillar of the traditional paradigm is the invited-error rule, which bars a party from “complain[ing on appeal] about an error [that the party] invited the trial court to make.”16 Many Florida cases say this rule is meant to prevent sandbagging.17 However, as discussed below, courts often use this rule to bar review of unpreserved issues even if the court believes trial counsel wasn’t sandbagging.

Applying the invited-error rule in criminal appeals is problematic. To see why, start with a phrase seen in many Florida invited-error criminal cases: “[F]undamental error may be waived where defense counsel requests the erroneous instruction.”18 But fundamental error is harmful “[b]y its very nature”; if an error is not harmful, “it would not meet [the] requirement for being fundamental.”19 If fundamental error is harmful by its nature, how can it be waived? Put another way, if an error was waived, how can that error be said to be — or have ever been, before being waived — fundamental? By definition, the invitation comes before the “error” occurs; but the invitation authorizes the commission of the “error”; so in what sense did “error” ever really occur? Thus, “there is no error at all when a right has been waived,”20 which means an appellate court “need not decide whether [any ‘error’] was fundamental.”21

All this may seem to be mere semantics. Invited error or waived fundamental error, the result is the same; the issue cannot be raised on appeal. But in criminal appeals, the idea that counsel can waive fundamental error may collide with the defendant’s unique due process rights.

To see how this might occur, we must first note that “waiver,” defined as “the ‘intentional relinquishment...of a known right,’” is distinguished from “forfeiture,” which is merely a failure to “timely assert[] a right.”22 Forfeiture can be based on ignorance or negligence; one fails to assert a right because one either doesn’t know it exists or simply forgets to timely assert it. But waiver is based on knowledge (of the right) and intent (to relinquish that known right).

As noted above, Florida courts say the invited-error rule is designed to prevent sandbagging. As with waiver, sandbagging refers to knowing and intended behavior; one can neither accidentally waive a right nor accidentally sandbag. If the invited-error rule is meant to prevent sandbagging, then before one can invite an error — and, thus, waive the right to raise the issue on appeal — one must know that issue exists and intentionally relinquish it.

This distinction between forfeiture and waiver is crucial in this context. All parties have basic due process rights (e.g., notice, hearing), and they are generally bound by acts of counsel regarding the conduct of trial.23 But a criminal defendant has many more specific rights, including the right to effective counsel, whose job it is to protect all of these other specific rights. Counsel’s decisions may affect these rights, e.g., failing to object to an instruction that omits an element of the charged offense affects the defendant’s “[right] to have a jury decide all of the elements of [the charged offense].”24

The fact that the defendant has these unique rights raises troublesome waiver questions. “Whether a particular right is waivable; whether [the defendant] must participate personally in the waiver; whether certain procedures are required for waiver; and whether [the defendant’s] choice must be particularly informed or voluntary, all depend on the right at stake.”25 There are two waiver issues in the present context. For an invited-error/waiver to occur, must it be shown that 1) counsel knew of the precise legal issue that was lost by the failure to object; and 2) the defendant personally knew of that issue and agreed with counsel’s decision to waive it?

Florida courts have not addressed these questions in depth. In Armstrong, v. State, 579 So. 2d 734, 735, n. 1 (Fla. 1991), the court said an error was invited/waived because “counsel’s request for the limited instruction was a tactical decision”; and a personal waiver by the defendant was not needed because this was not “a waiver of a fundamental right.” But, given the facts in that case, the court seemed to feel that counsel’s tactical decision was reasonable (or at least was not unreasonable on its face): Counsel “requested an abbreviated version of the standard instruction on excusable homicide” — which omitted parts “[ir]relevant to the case” — because counsel wished “to tailor it to the defense [of accident].”26 The court did not address the problem of error being invited/waived by a decision of counsel that was, for IAOC purposes, unreasonable. In such cases, whether the issue was invited/waived by counsel, and whether the defendant must personally waive the issue, are closer questions.

The right to counsel must be personally, knowingly, and intelligently, waived.27 Arguably, the right to effective counsel requires a similar personal waiver. If counsel does something during trial that, for IAOC purposes, is wholly unreasonable, it could be argued that this “tactical” decision will be invited error only if the defendant, after being informed of the legal options, agrees to it.

Although not noting this personal-waiver issue, Florida district courts say invited error occurs only if “counsel [is] aware of the omission, alteration, or incomplete instruction and affirmatively agree[s] to it”; and invited error does not occur if “there is no indication [counsel] knew that the omission was error and agreed to the omission.”28 But note the difference between 1) aware of omission, and 2) knew omission was error. Does the invited-error rule require only proof that counsel knew the facts, i.e., knew the precise wording in the challenged instruction? Or must it also be shown that counsel knew the wording in the instruction created a legal error? The latter seems more logical, given the definition of waiver and the anti-sandbagging purpose of the invited-error rule: If counsel didn’t know counsel was inviting/waiving the legal error, then counsel didn’t “intentionally inject [that error] into the trial” in an attempt to sandbag.29

The Florida cases do not address these issues of waiver vs. forfeiture and fact knowledge vs. law knowledge. Rather, to determine whether an error was invited/waived, the courts distinguish between 1) counsel’s acquiescence, silence, and failure to object to the instruction (error not invited); and 2) counsel’s affirmatively agreeing to, or specifically requesting, the instruction (error invited).30 But this dichotomy 1) doesn’t address the issues of waiver vs. forfeiture and fact knowledge vs. law knowledge; and 2) is irrelevant to the sandbagging issue. Counsel with fact knowledge can specifically request an erroneous instruction without knowing that legal error is being created, i.e., forfeit (not waive) the issue by requesting an erroneous instruction due to ignorance of law. Conversely, counsel with law knowledge and with intent to sandbag can silently acquiesce to an instruction that counsel knows is legally erroneous (which, technically, would be a waiver, albeit one concealed from trial court and prosecutor). Counsel’s silence proves nothing about whether counsel is sandbagging; indeed, under current Florida law, counsel should keep quiet to insure the sandbagging attempt is not spoiled by a specific request that would invite the error counsel wishes to use to sandbag.

Recent district court cases recognize that Florida law is unclear on these issues.31 Some courts find an error to be invited even in the absence of “bad motives of legal trickery”;32 some “even found waiver without any indication that counsel was aware the instruction contained the alleged error....”33 Thus, courts seem to be applying the terms “invited error” and “sandbagging” to two distinct situations: 1) cases in which counsel intentionally allows or injects error into the trial in order to create an appellate issue; and 2) cases like Armstrong, in which trial counsel waives an issue as a legitimate tactic but appellate counsel nonetheless raises that issue on appeal.

An appellate court asked to grant relief on an unpreserved issue has a valid concern about the possibility that trial counsel’s failure to preserve was a legitimate trial tactic. But this possibility should not be called sandbagging. Trial counsel in Armstrong was quite candid about why he wanted the truncated instruction. The fact that appellate counsel later raised the issue anyway did not, retroactively, turn trial counsel’s valid trial tactic into sandbagging. What occurs in cases like Armstrong is that two lawyers disagreed about the validity of an issue. To call this “invited error” is to invoke that rule for purposes other than merely to prevent sandbagging.34

The crucial point here is that, just as in cases of “true” sandbagging, counsel in cases like Armstrong waived the issue, i.e., intentionally relinquished a right of the defendant’s that counsel knew the defendant had. And this should be the focus of the invited-error rule as applied to jury-instruction issues in criminal cases. If it is clear in the record that when counsel failed to object to the challenged instruction, counsel was neither trying to sandbag nor pursuing some possibly reasonable trial strategy, then the error should not be considered to be invited/waived, even if counsel specifically requested the instruction. In most cases, this will mean it is clear counsel’s failure to object was based on ignorance of law or basic fact.

In sum, the traditional appellate paradigm for addressing unpreserved jury-instruction issues in direct criminal appeals focuses on the nature and seriousness of the alleged error and the possibility that counsel may have intentionally allowed the error to occur, either as a valid trial tactic or to sandbag. This, in essence, is identical to the IAOC paradigm, as is seen in the relevant cases.

Florida Cases Granting Relief on Unpreserved Jury Instruction Issues
Up until 2000, all Florida cases that reversed convictions on unpreserved jury-instruction issues used the traditional paradigm. Both paradigms have been used since then. We will discuss the two most common types of errors, element errors and affirmative-defense errors.

Element Errors — Element errors concern the elements of an offense. There are two types, misstatements (the instruction erroneously defines, or misleads jurors regarding, an element); and omissions (the instruction entirely omits an element). With both types, the error is fundamental if the relevant element is disputed, and the flaw in the instruction “is pertinent or material to what the jury must consider to convict.”35

Many cases grant new trials on direct appeal on this type of unpreserved issue.36 All but one use the traditional paradigm. The exception here is Forget v. State, 782 So. 2d 410 (Fla. 2d DCA 2001), in which the defendant was convicted of possessing both cocaine and drug paraphernalia, based on his possessing a pipe with cocaine residue. Trial counsel admitted to the jury that Forget possessed the pipe — thus admitting the paraphernalia charge — but argued that Forget wasn’t guilty of possessing the cocaine residue because the [s]tate didn’t prove Forget “knew the discolored material in the pipe was cocaine.”37 But counsel didn’t request an instruction — to which Forget was entitled, under then-extant law — that “the [s]tate must prove [Forget knew] of the presence of the substance [in the pipe] and the substance that he possessed was known to him to be cocaine.”38

The district court concluded IAOC occurred and reversed. Deficient performance was established because counsel “effectively admitted both charges” (by admitting Forget possessed the pipe) but failed to insure that the jury was properly instructed on the element that was crucial to Forget’s theory of the case.39 Prejudice was shown because “the only evidence which would support the possession of cocaine charge is the residue in the pipe” and “there is a reasonable probability [the jury] would have reached a different verdict” if a proper instruction had been given.40

In effect, this court found IAOC occurred because counsel failed to request an available instruction that pertained to an element that was disputed at trial and was “material to what the jury must consider to convict.”41 Put another way, IAOC was proven because counsel allowed fundamental error to occur; indeed, both the Florida Supreme Court and at least three district courts later held it is fundamental error to omit this knowledge instruction in a drug case when that issue is disputed at trial and supported by evidence.42

In sum, whether addressed under the traditional paradigm or framed as an IAOC claim, courts use the same basic reasoning when granting relief on unpreserved element-error issues. The same is true with affirmative-defense error issues.

Affirmative-Defense Errors — Affirmative-defense errors come in the same two basic types, misstatements (defense instruction given but erroneous) and omissions (no instruction given at all).

In a misstatement-error case, the Florida Supreme Court said fundamental error occurs if an affirmative-defense instruction is “so flawed as to deprive [the defendant] of a fair trial.”43 The court held the flawed instruction in that case was not fundamental error because 1) self-defense “was not [the defendant’s] only strategy” and, thus, the instruction given “did not deprive [the defendant] of his sole, or even his primary, defense”; and 2) the evidence supporting that defense “was extremely weak,” which meant “the possibility that the jury would have [acquitted] is minimal at best.”44

The district courts have long recognized that errors in affirmative defense instructions can be fundamental, in three contexts: the prescription defense in drug-possession cases; the good-faith (claim of right, advice of counsel) defense in theft and robbery cases; and self-defense. The prescription cases and the good-faith cases are all omission error cases; the great majority of the self-defense cases are misstatement cases.

More recent cases hold that counsel’s failure to insure that an accurate defense instruction is given can also constitute IAOC.

Prescription Defense and Good-Faith Defense
Using logic that applies to all affirmative defenses, one court summarized the reasoning of several cases that held the omission of a prescription instruction was fundamental error as follows:

“Where a jury is not instructed on...a crucial defense, [the defendant] is deprived of a fair trial if the error divests [the defendant] of [the] sole [or] primary defense strategy and that defense is supported by evidence...that [is] not...weak....The justification for this rule follows logic. “An affirmative defense does not concern itself with the elements of the offense at all; it concedes them. In effect, an affirmative defense says, ‘Yes, I did it, but I had a good reason.’” [I]f a jury is not instructed [on an] affirmative defense, and that affirmative defense [is the defendant’s] sole or primary defense[,] then the jury, confining itself to the instructions provided by the court, would be required to convict.”45

In two of these cases, the courts also concluded that “counsel’s failure to request [the prescription] instruction constitutes [IAOC]” because that was the defendant’s “primary defense” and “a defendant is deprived of a fair trial when the jury is not instructed on the law of a crucial defense.”46

The same pattern is seen in the cases that reverse because a good-faith instruction wasn’t given. Two courts have held it is fundamental error to omit a good-faith instruction when that is the only viable defense and “there was ample, although disputed, evidence” to support it, because that omission “[goes] to the very heart, indeed to the existence of the defense.”47 Three courts have held IAOC occurs if counsel’s failure to request a good-faith instruction “deprived [the defendant] of a defense,” because “it is patently unreasonable to fail to request an instruction that provides a legal defense to undisputed facts.”48

Self-Defense Instructions
The same pattern is seen with self-defense instructions.

Many cases find misstatements in self-defense instructions to be fundamental error. This occurs when the flawed instruction “very likely misled the jury [and] could have depriv[ed the defendant] of his sole defense”49 or “may have deprived [the defendant] of a fair trial because his defense was plausible.”50

Several recent misstatement-error cases found IAOC occurred because counsel failed to insure that a proper self-defense instruction was given. In one case, counsel, “obviously unaware of the law,” “repeatedly” (and erroneously) told the jury the defendant had to prove self-defense beyond reasonable doubt and agreed to an instruction to that effect.51 The court said “no possible strategy justif[ied] shifting the burden of proof to [the defendant] as to the only real issue”; and prejudice was shown because this “was [the defendant’s] only defense” and the facts were disputed.52 IAOC was also found in three cases where counsel obtained an instruction on the use of deadly force but didn’t ask for an instruction on nondeadly force. One court said nondeadly force was “the only self-defense instruction that fits the undisputed facts” and there was “no strategic reason for...counsel to request a[n] instruction that made it more difficult [to prove self-defense].”53 Two courts noted that, under the instruction given, “even if [the jury] believed [the defendant] acted in self-defense,” it had no “legal basis to [acquit].”54

As to omission errors, one court held counsel’s failure to request any self-defense instruction was IAOC. This court said it was “inexplicable” that counsel didn’t request the instruction because “self-defense was [the] only proffered defense” and the testimony supported that defense.55 Prejudice was also clear because, in light of the facts in the case, there was a “reasonable possibility that the[ jury] might have found [the defendant] acted in self-defense.”56

Conversely, two courts found the total omission of a self-defense instruction was not fundamental error, primarily because the courts felt trial counsel may have had good reason for not requesting the instruction. In one case, the court noted counsel “did not argue self-defense,” and the “theory of defense was that conflicts in the testimony [created] reasonable doubt.”57 In the second case, although counsel argued self-defense and “asked the jury to rely on the justifiable attempted homicide instruction,” the court concluded that giving a full self-defense instruction:

“would have made [the defendant’s] acquittal even more difficult because [it was undisputed the defendant] had several opportunities to ‘retreat’ safely but did not do so. It would not take much thought by a defense attorney with a modicum of common sense to reject the idea of requesting the self-defense instruction under [the defendant’s] circumstances.”58

In sum, in all these affirmative-defense cases, courts apply the same basic rules and principles under both paradigms, focusing on the importance of the defense instruction in the context of the case and the possibility that counsel may have had good reason for not requesting the instruction.

Conclusion
These cases confirm what the Florida Supreme Court recently acknowledged: There is a “high correlation between errors that may be corrected as fundamental error...and errors that may be corrected as [IAOC] on direct appeal.”59 As Justice Wells noted in 2001, because a fundamental error is one that is “so serious that the trial judge should have sua sponte...correct[ed] it,” it “logically follows [that] counsel who did not object to such an egregious error must be [ineffective].”60 Similar statements are found in district court cases.61 Other recent district court cases recognize the overlap in the two paradigms when they hold that counsel’s inviting an error both waived a fundamental error claim and also proved the deficient-performance element of an IAOC claim.62

Some district court judges have expressed concern that recognizing unpreserved IAOC claims on direct appeal conflicts with §924.051(3), which allows appellate courts to address only issues that are either preserved or constitute fundamental error.63 Such concerns are unfounded. It is true that, in §924.051, the legislature did not expressly allow IAOC claims to be raised on direct appeal; but the legislature didn’t expressly forbid that either, despite the fact that the Florida Supreme Court has long recognized that some IAOC claims can be raised on direct appeal.64 Further, even if the legislature had expressly barred IAOC claims on direct appeal, that would probably infringe on the Florida Supreme Court’s state constitutional power to regulate practice and procedure in the courts.65 Matters of when and how to require preservation, and when, and on what basis, to grant relief on unpreserved issues, are within the court’s exclusive bailiwick.66

Finally, there is no conflict between §924.051 and the concept of granting relief on unpreserved IAOC claims. In allowing fundamental errors to be raised under §924.051, the legislature deferred to “the judicial[] definition of ‘fundamental error,’”67 which courts have defined as including errors that “amount to a denial of due process”68 or “so damaged the fairness of the trial that the public’s interest in our system of justice requires a new trial.”69 The right to effective counsel is a basic element of due process. Thus, an IAOC claim is a fundamental error claim, applied to a specific set of facts: Fundamental error occurred because the defendant was deprived of the basic due process right to effective counsel. And, when this occurs, it so damages the fairness of the trial that the public’s interest in our system requires a new trial.

In sum, in criminal appeals the two paradigms are, in essence, identical. They should be combined into the three-part test noted above, which focuses on the crucial questions of whether error did in fact occur and whether counsel might have intentionally allowed that error to occur, either as a legitimate trial tactic or to sandbag.


1 Black’s Law Dictionary (10th ed. 2014).

2 Armstrong v. State, 579 So. 2d 734, 735 (Fla. 1991).

3 See Murphy v. International Robotic Systems, Inc., 766 So. 2d 1010, 1016-17 (Fla. 2000); State v. Rhoden, 448 So. 2d 1013, 1016 (Fla. 1984), receded from on other grounds, Maddox v. State, 760 So. 2d 89, 98 (Fla. 2000); Porter v. State, 356 So. 2d 1268, 1270-71 (Fla. 3d DCA 1978) (Hubbart, J., dissenting).

4 See, e.g., Maddox, 760 So. 2d at 98.

5 Strickland v. Washington, 466 U.S. 668, 687-88, 693 (1984).

6 Blanco v. Wainwright, 507 So. 2d 1377, 1384 (Fla. 1987).

7 E.g., Antunes-Salgado v. State, 987 So. 2d 222, 228-29 (Fla. 2d DCA 2008).

8 E.g., Romine v. State, 162 So. 3d 1102, 1104 (Fla. 2d DCA 2015); Hills v. State, 78 So. 3d 648, 650, 652-53 (Fla. 4th DCA 2012).

9 See Butler v. State, 84 So. 3d 419, 421 (Fla. 5th DCA 2012) (“[A] tactical or strategic decision is unreasonable if it is based on a failure to understand the law.”) (citation omitted); Antunes-Salgado, 987 So. 2d at 228-29.

10 Borden, Inc. v. Young, 479 So. 2d 850, 851-52 (Fla. 3d DCA 1985).

11 Vaughn v. Progressive Ins. Co., 907 So. 2d 1248, 1253 (Fla. 5th DCA 2005).

12 Kearse v. State, 662 So. 2d 677, 682 (Fla. 1995).

13 State v. Smith, 240 So. 2d 807, 810 (Fla. 1970).

14 Murphy, 766 So. 2d at 1026, 1030.

15 Bain v. State, 730 So. 2d 296, 302 (Fla. 2d DCA 1999).

16 Gupton v. Village Key & Saw Shop, 656 So. 2d 475, 478 (Fla. 1995).

17 E.g., Armstrong, 579 So. 2d at 735; Smith v. State, 76 So. 3d 1056 (Fla. 4th DCA 2011); Chambers v. State, 880 So. 2d 696 (Fla. 2d DCA 2004); Caldwell v. State, 920 So. 2d 727 (Fla. 5th DCA 2006).

18 Richards v. State, 128 So. 3d 959, 964 (Fla. 2d DCA 2013).

19 Reed v. State, 837 So. 2d 366, 369-70 (Fla. 2002).

20 United States v. Perez, 116 F.3d 840, 849 (9th Cir. 1997) (Kleinfeld, J., concurring).

21 State v. Yegan, 221 P.3d 1027, 1032 (Ariz. Ct. App. 2009).

22 United States v. Olano, 507 U.S. 725, 733 (1993) (emphasis added).

23 See 4 Fla. Jur. 2d, Attorneys at Law §327 (2016).

24 State v. Hargrove, 293 P.3d 787, 797 (Kan. Ct. App. 2013).

25 Olano, 507 U.S. at 733.

26 Id. at 734-35.

27 Faretta v. California, 422 U.S. 806 (1975).

28 Van Loan v. State, 736 So. 2d 803, 804 (Fla. 2d DCA 1999) (emphasis added); accord Beckham v. State, 884 So. 2d 969 (Fla. 1st DCA 2004); Fletcher v. State, 828 So. 2d 460 (Fla. 5th DCA 2002); Richardson v. State, 818 So. 2d 679 (Fla. 3d DCA 2002).

29 Armstrong, 579 So. 2d at 735 (emphasis added).

30 See, e.g., Burns v. State, 170 So. 3d 90, 93, n.3 (Fla. 1st DCA 2015).

31 See Knight v. State, 2016 WL 4036091 (Fla. 1st DCA 2016); Moore v. State, 114 So. 3d 486, 491-92 (Fla. 1st DCA 2013), rev. dis., State v. Moore, 181 So. 3d 1186 (Fla. 2016). Caselaw from other jurisdictions is in similar conflict. See discussions in United States v. Perez, 116 F.3d 840 (9th Cir. 1997); State v. Hargrove, 293 P.3d 787 (Kan. Ct. App. 2013); State v. Rich, 3 A.3d 1210 (Md. 2010); and State v. Richard, 7 A.3d 1195 (N.H. 2010).

32 Caldwell, 920 So. 2d at 733.

33 Moore, 114 So. 3d at 492.

34 Some cases indicate that the invited-error rule may be based on an estoppel theory. E.g., Weber v. State, 602 So. 2d 1316, 1319 (Fla. 5th DCA 1992). Estoppel is a different theory from waiver. Waiver focuses on the acts and mental state of the party seeking relief; estoppel is concerned with the effects that party’s acts had on the opponent. Under an estoppel theory, if error is invited (even if unintentionally), and one party must bear the burden of that error, the party responsible for the error is the logical candidate. See Progressive Exp. Ins. Co. v. Camillo, 80 So. 3d 394, 402 (Fla. 4th DCA 2012); SourceTrack, LLC v. Ariba, Inc., 958 So. 2d 523, 526-27 (Fla. 2d DCA 2007); 22 Fla. Jur. 2d, Estoppel and Waiver §1 (2016). But if the counsel responsible for the error didn’t know error was being created, then neither a waiver nor sandbagging occurred. Here, again, we run into the problem of punishing the defendant (by barring the raising of an appellate issue) because trial counsel made a mistake. If counsel’s making that estoppel-creating mistake was unreasonable, then counsel’s performance was constitutionally deficient, which in turn proves half of an IAOC claim.

35 Reed v. State, 837 So. 2d 366, 369 (Fla. 2002); Garcia v. State, 901 So. 2d 788, 793-94 (Fla. 2005).

36 For recent examples, see Gammage v. State, 181 So. 3d 1256 (Fla. 2d DCA 2015); Williams v. State, 145 So. 3d 997 (Fla. 1st DCA 2014).

37 Forget, 782 So. 2d at 412.

38 Id. at 412, n.1.

39 Id. at 413.

40 Id.

41 Reed, 837 So. 2d at 369.

42 Garcia, 901 So. 2d at 793-94; Jones v. State, 857 So. 2d 969, 970 (Fla. 2d DCA 2003); Goodman v. State, 839 So. 2d 902, 902 (Fla. 1st DCA 2003); Blunt v. State, 831 So. 2d 770, 771-72 (Fla. 4th DCA 2002).

43 Martinez v. State, 981 So. 2d 449, 455 (Fla. 2008).

44 Id. at 456.

45 Ramirez v. State, 125 So. 3d 171, 176 (Fla. 4th DCA 2013) (citing Ayotte v. State, 67 So. 3d 330 (Fla. 1st DCA 2011); Glovacz v. State, 60 So. 3d 423 (Fla. 1st DCA 2011); and McCoy v. State, 56 So. 3d 37 (Fla. 1st DCA 2010)).

46 Shedd v. State, 137 So. 3d 456, 459 (Fla. 4th DCA 2014); Ramirez, 125 So. 3d at 175, n.1.

47 Thomas v. State, 526 So. 2d 183, 184 (Fla. 3d DCA 1988); Rodriguez v. State, 396 So. 2d 798, 800 (Fla. 3d DCA 1981).

48 Aversano v. State, 966 So. 2d 493, 495-96 (Fla. 4th DCA 2007); Hardman v. State, 217 So. 3d 107 (Fla. 4th DCA 2017); Capiro v. State, 97 So. 3d 298, 300 (Fla. 4th DCA 2012).

49 Jackson v. State, 179 So. 3d 443, 446 (Fla. 5th DCA 2015) (collecting cases).

50 Talley v. State, 106 So. 3d 1015, 1018 (Fla. 2d DCA 2013).

51 Spicer v. State, 22 So. 3d 706, 707 (Fla. 5th DCA 2009).

52 Id. at 708.

53 Marty v. State, 210 So. 3d 121, 125-26 (Fla. 2d DCA 2016).

54 Michel v. State, 989 So. 2d 679, 681-82 (Fla. 4th DCA 2008), accord McComb v. State, 174 So. 3d 1111, 1113 (Fla. 2d DCA 2015).

55 Kruse v. State, 222 So. 3d 13, 16-17 (Fla. 4th DCA 2017).

56 Id.

57 Shells v. State, 642 So. 2d 1140, 1141 (Fla. 4th DCA 1994).

58 Muteei v. State, 708 So. 2d 626, 628-29 (Fla. 3d DCA 1998).

59 Monroe v. State, 191 So. 3d 395, 402, n.5 (Fla. 2016).

60 Downs v. Moore, 801 So. 2d 906, 917 (Fla. 2001) (Wells, C.J., concurring); see also Lowe v. State, 2 So. 3d 21, 38 (Fla. 2008); Chandler v. State, 848 So. 2d 1031, 1046 (Fla. 2003).

61 E.g., Guarscio v. State, 64 So. 3d 146, 148-49 (Fla. 2d DCA 2011); Ross v. State, 726 So. 317, 319 (Fla. 2d DCA 1998).

62 Morgan v. State, 146 So. 3d 508, 514 (Fla. 1st DCA 2014); Johnson v. State, 133 So. 3d 602 (Fla. 1st DCA 2014), disapproved on other grounds, State v. Tuttle, 177 So. 3d 1246 (Fla. 2015); Hill v. State, 114 So. 3d 1071 (Fla. 1st DCA 2013); Berdecia v. State, 971 So. 2d 846 (Fla. 3d DCA 2007); see also Garcia v. State, 143 So. 3d 1105, 1108, n.2 (Fla. 2d DCA 2014) (similar to Morgan but granting relief on grounds of fundamental error).

63 See Elmore v. State, 172 So. 3d 465, 467 (Fla. 1st DCA 2015); Monroe v. State, 148 So. 3d 850, 859-60, n.3 (Fla. 1st DCA 2014), quashed on other grounds, 191 So. 3d 395 (Fla. 2016); Seccia v. State, 720 So. 2d 580, 582 (Fla. 1st DCA 1998), remanded, 764 So. 2d 573, 574 (Fla. 2000); Latson v. State, 193 So. 3d 1070, 1072-74 (Fla. 1st DCA 2016) (Winkour, J., concurring).

64 E.g., Blanco v. Wainwright, 507 So. 2d 1377, 1384 (Fla. 1987).

65 Fla. Const. art. V(2)(a).

66 See Leonard v. State, 760 So. 2d 114, 118 (Fla. 2000) (construing §924.051(4) — which flatly says, without exception, that, “without expressly reserving [a] dispositive issue,” D “may not appeal” from a plea of guilty or no contest — “as codifying the existing limitations on what issues may be addressed on appeal [in such cases],” which means that, in plea-without-reservation cases, D can (still) raise the five issues listed in Rule 9.140(b)(2)(A)(ii)).

67 Maddox, 760 So. 2d at 95.

68 Castor v. State, 365 So. 2d 701, 704, n.7 (Fla. 1978).

69 Murphy, 766 So. 2d at 1026.


Richard Sanders graduated from the University of Pennsylvania Law School in 1982, and has worked for the 10th Circuit Public Defender’s Office since 1996.

[Revised: 01-25-2018]