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The Florida Bar Journal
March, 2018 Volume 92, No. 3
Unpreserved Errors Are All the Same, Right? Not Exactly

by Tracy S. Carlin

Page 35

In both state and federal court, to preserve an error for review and correction on appeal, a party must make a specific, contemporaneous objection to the perceived error.1 These rules serve three goals: 1) It gives the trial court the opportunity to correct the error; 2) it prevents the delay and an unnecessary use of the appellate process that may result from the failure to cure the error early; and 3) it prevents counsel from allowing errors to go unchallenged by objection and then later trying to use that error to a client’s tactical advantage.2 Under Florida law, the sole exception to the contemporaneous-objection rule is where the unobjected-to error is fundamental in nature.3 In contrast, under federal law, unobjected-to error is reviewed for plain error.4 This article attempts to explain the similarities and differences between the concepts of reversible fundamental and plain error.

Fundamental Error
The Florida Supreme Court has stated that “in order to be of such fundamental nature as to justify a reversal in the absence of timely objection, 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.”5 Under this analysis, an error is deemed fundamental “when it goes to the foundation of the case or the merits of the cause of action and is equivalent to a denial of due process.”6 In addition, the court has stated that “[t]he doctrine of fundamental error 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.”7

In general, the fundamental error doctrine is the same in both criminal and civil cases under Florida law, but courts are apparently more inclined to find fundamental error in criminal cases — where an individual’s liberty is at stake — than they are in civil cases. In criminal cases, for example, an improper jury instruction may be held to be fundamental error; whereas, in a civil case, it may not.8 An incorrect or improper jury instruction in a criminal case is more likely to violate not only the defendant’s due process right to a fair trial, but also the derivative right to a jury trial.9 The theory here is that if the jury followed the law as it was instructed, then the ultimate verdict is presumably predicated upon the legal premises provided in the jury instructions.10 Therefore, it follows that the erroneous legal principles contained in the incorrect jury instruction likely impacted the jury’s deliberations and the resulting verdict.11 Thus, an erroneous jury instruction that results in a guilty verdict is the type of error that strikes at the fundamental legality of the trial itself and would be recognized as fundamental error.12

To be fundamental in nature, the error must also be harmful. If the error is not harmful, it cannot meet the requirement of being fundamental and, therefore, it cannot be corrected if it was not preserved for appeal by a contemporaneous objection.13 For example, when a jury instruction contained an error that was not material to what the jury must consider to convict the defendant of the crime charged, the error is not deemed to be fundamental.14 For an error to meet this narrow standard of fundamentality, it must be error that prejudiced the defendant.15

As the Florida Supreme Court observed in Jackson v. State, 983 So. 2d 562, 576 (Fla. 2008), the U.S. Supreme Court has “recognized a limited class of fundamental constitutional errors that ‘defy analysis by the “harmless error” standards.’”16 “These errors are so ‘intrinsically harmful as to require automatic reversal (i.e., ‘affect substantial rights’) without regard to their effect on the outcome.’”17 The complete denial of counsel to a criminal defendant has been listed as one of the classes of errors that requires automatic reversal.18 In contrast, the court found that a prosecutor’s statement, “Don’t let him get away with this,” did not rise to the level of fundamental error because the prosecutor also told the jury there were lesser-included offenses, which he listed, and then asked the jury not to let the defendant get away with first-degree felony murder if that was the crime for which they chose to convict him.19 Thus, even in criminal cases, whether the error will be deemed fundamental will depend on the overall nature of the unobjected-to error and its ultimate impact on the outcome of the case or the prejudice to the defendant.

Jurisdictional issues present the best examples of the kinds of claims that can be raised in the appellate court despite the absence of a contemporaneous objection in the trial court.20 The jurisdiction of the trial court is a fundamental matter that is permitted to be raised for the first time on appeal.21 If a trial court acts in excess of its jurisdiction, for example, the resulting error is one that necessarily affects the foundation of the case.22

Whether the fundamental error exception will be applied to a constitutional issue is not always clear.23 An error may be constitutional but still might not rise to the level of fundamental error requiring a reversal in the absence of a timely objection.24 For example, the Supreme Court has held that an improper comment on the failure of an accused to testify in a criminal case is a constitutional error, but that it, nevertheless, does not serve as ground for a reversal of a conviction when the defendant did not object below because it is not also fundamental error.25 Other constitutional issues are regularly classified as fundamental error, however.26 For example, a double-jeopardy defense may serve as a basis for the reversal of a criminal conviction notwithstanding the defendant’s failure to file a motion to dismiss in the trial court.27 Similarly, a violation of due process of law or a conviction for a nonexistent offense will not be affirmed merely because it was not preserved for review on appeal.28

Even though the concept of fundamental error is essentially the same in civil and criminal cases, it seems to be much harder in civil cases to convince a court that an unobjected-to error is fundamental and reversible error. But when fundamental error is apparent on the face of the judgment itself, the courts will recognize and correct that error.29 That error must be an error of law, not of fact, however.30 Thus, when a jurisdictional or other fundamental error is apparent on the face of the record itself, that error may be considered by the appellate court, even if it was not assigned as error in the trial court or on appeal.31

To try to categorize the types of error that will be deemed fundamental in civil cases is very difficult — it tends to be a the-court-knows-it-when-it-sees-it situation.32 “The paramount consideration in applying the doctrine of fundamental error [in a civil case] should focus on the public’s perception and confidence in the judicial process.”33 As Judge Chris W. Altenbernd stated in Hagan v. Sun Bank of Mid-Florida, N.A., 666 So. 2d 580, 584 (Fla. 2d DCA 1996):

“Although fundamental error is extraordinarily difficult to define, the doctrine functions to preserve the public’s confidence in the judicial system. Relief is granted for a fundamental error not because the party has preserved a right to relief from a harmful error, but because the public’s confidence in our system of justice would be seriously weakened if the courts failed to give relief as a matter of grace for certain, very limited and serious mistakes.”

One area in which fundamental error may be found in a civil case is when a court grants a party relief that is not authorized by law, does not exist as a cause of action, or is not otherwise available as a remedy to the plaintiff.34 Examples of this might be an award of a nonmarital asset as part of the equitable distribution in a divorce proceeding, or granting a remedy on an oral contract when the uncontroverted evidence showed it violated the statute of frauds.35

The seminal decision on fundamental error in civil cases is Sanford v. Rubin, 237 So. 2d 134 (Fla. 1970).36 In Sanford, the court defined fundamental error as “error which goes to the foundation of the case or goes to the merits of a cause of action.”37 This is basically the same definition of fundamental error as that found in F.B. v. State, 852 So. 2d 226, 229 (Fla. 2003).

The Fourth District Court of Appeal has recognized, however, that in civil cases, it generally limits the use of the Sanford-defined fundamental error to situations in which the trial court granted relief but the party obtaining that relief was not legally entitled to it as a matter of law.38 Errors related to subject-matter jurisdiction may also be recognized as fundamental error.39 Similarly, errors in due process, such as the entry of a judgment without proper notice, may be considered by the courts to be fundamental error.40

Occasionally, courts will use the fundamental error doctrine to correct mistakes or omissions at trial when an objection would not have been possible. For example, the entry of a judgment on unliquidated damages following a default judgment has been held to be fundamental error when the defaulting party had no notice of the trial on damages,41 or the complaint upon which the default judgment was entered did not seek the damages the court ultimately awarded.42 Similarly, courts have reviewed judgments on appeal that were entered against a nonparty.43

Improper comments during closing arguments used to be an area where unobjected-to errors were regularly argued to be fundamental, reversible error. But in Murphy v. International Robotic Systems, Inc., 766 So. 2d 1010 (Fla. 2000), the Supreme Court essentially changed the rules regarding when a court can consider unobjected-to closing arguments at trial. As the court said in its conclusion in Murphy, “[a]lthough we have not absolutely ‘closed the door’ on appellate review of unpreserved challenges to closing argument, we have come as close to doing so as we believe consistent with notions of due process which deserve public trust in the judicial system.”44 Thus, to seek review of unobjected-to, improper comments during closing argument, the complaining party must satisfy the four-part test set forth in Murphy, and he or she must do so in a post-trial motion, not for the first time on appeal.45

Plain Error
Unlike the Florida courts, which employ the fundamental error exception to unpreserved errors, the federal courts utilize a doctrine of “plain error.”46 Plain-error review is an extremely stringent form of review.47 Like the fundamental error exception, it is only in rare cases that a trial court will be reversed for plain error.48 Under the plain-error doctrine, an appellate court may, in its discretion, correct an error not raised at trial when the appellant establishes the following four requirements: 1) an error occurred; 2) the error was plain; 3) it affected substantial rights; and 4) not correcting the error would seriously affect the fairness of the judicial proceeding.49 The U.S. Supreme Court has indicated that a per se approach to review for plain error is flawed and has instructed that the fourth prong of this analysis is meant to be applied on a case-specific and fact-intensive basis.50

In the 11th Circuit, the courts define an “error” as a “[d]eviation from a legal rule.”51 To find that the error is “plain,” the “error must be one that is obvious and clear under current law.”52 Generally, if a circuit conflict exists on a question, and the law is unsettled in the circuit in which the appeal was taken, any error cannot be found to be plain or obvious.53 But, the error need not be plain at the time of the trial so long as the error was rendered plain and obvious in that circuit by the time of the appellate review.54 In addition, the courts will find that a plain error affects a party’s substantial rights when the error is “prejudicial.”55 Finally, the error must seriously undermine the fairness, integrity, and public reputation of the judicial proceedings.56

The U.S. Supreme Court has recognized that its cases speak of a need for a showing that the error affected the “outcome of the district court proceedings” in the “ordinary case.”57 The Court has also noted the possibility that certain errors, called “structural errors,” might “affect substantial rights” regardless of their actual impact on an appellant’s trial.58 Still, “structural errors,” are a “very limited class of errors that affect the ‘framework within which the trial proceeds.’”59 In the case of structural errors, it can often be difficult to assess the impact of the error on the outcome of the case.60 Indeed, what is truly meant by a structural error has never really been fully clarified by the Court.61

In 2017, however, the Court attempted to further explain the concept of structural errors; that is, the type of errors that should not be deemed harmless beyond a reasonable doubt.62 The Court explained that the “purpose of the structural error doctrine is to ensure insistence on certain basic, constitutional guarantees that should define the framework of any criminal trial.”63 Thus, the “defining feature of a structural error is that it ‘affect[s] the framework within which the trial proceeds,’ rather than being ‘simply an error in the trial process itself.’”64 The Court identified three, flexible categories of structural errors: 1) those in which the right at issue is not designed to protect the defendant from erroneous conviction, but instead protects some other right (like the right to conduct one’s own defense); 2) those in which the effects of the error are simply too hard to measure (like when a defendant is prevented from selecting the attorney of his or her choice); and 3) those that result in fundamental unfairness (like the denial of an indigent defendant’s right to an attorney).65

The Court observed that an error can be deemed structural even if the error does not lead to fundamental unfairness in every case.66 Nevertheless, the Court warned that the term “structural error” has no magical significance as a doctrinal matter;67 it means only that the government is not entitled to deprive the defendant of a new trial by showing that the error was “harmless beyond a reasonable doubt.”68

As in Florida, it appears that demonstrating plain error in federal civil cases is harder than in criminal ones. For example, the 11th Circuit has held that when a district court constructively amended the indictment against the defendant, the trial court had committed plain error, which required the reversal of that portion of the conviction that was based on the constructively amended indictment.69 Similarly, when the defendant’s conviction was based on inadmissible and unreliable hearsay, the Fifth Circuit found plain error and reversed the judgment of conviction despite the lack of an objection to the evidence at trial.70 Errors involving alternate jurors being present in the jury room during deliberations does not require a per se reversal.71 As the Fifth Circuit has noted, absent any indication that the alternate juror participated in the deliberations, the potential prejudice here is similar to when one juror must be replaced with an alternate.72 Likewise, issues related to the sufficiency of the evidence will not generally result in a reversal for plain error.73

Federal courts are more reluctant to grant relief for plain error in civil cases. For example, the 11th Circuit found no plain error when plaintiff’s counsel made numerous “improper” remarks during closing argument that were prejudicial and should have been excluded.74 Similarly, the 11th Circuit found no plain error when the trial court gave an incomplete instruction about the burden of proof.75

In sum, there are similarities between the federal and Florida doctrines dealing with plain and fundamental error, respectively. They both require the unpreserved error to be perceived as a violation of due process or the right to a fair trial which, if left uncorrected, would undermine the public’s confidence in our system of justice. In both federal and Florida cases, the courts are generally more likely to find either plain or fundamental error in criminal rather than civil cases. Similarly, in both jurisdictions, the error must be prejudicial to the complaining party. Some unobjected-to errors may be corrected without regard to the outcome of the case, like the denial of the right to counsel of one’s choice or an issue with subject-matter jurisdiction.

Some general differences exist, too. The largest difference seems to be that for plain error in federal cases, the error must be shown to be an error under the existing law of the relevant circuit at the time of the appeal. Florida does not appear to have that requirement, but trying to get the Florida courts to identify new types of fundamental error has proven difficult over time. Also, the federal test for plain error is arguably more defined and less subjective. Still, in either jurisdiction, the best practice is to comply with the contemporaneous objection rules so that resorting to either an argument of plain error or fundamental error is not necessary.

1 See Fla. Stat. §90.104(1)(a) (2017); F.R.E. 103(a).

2 See F.B. v. State, 852 So. 2d 226, 229 (Fla. 2003); United States v. Rodriguez, 627 F.3d 1372, 1379 (11th Cir. 2010).

3 F.B., 852 So. 2d at 229.

4 United States v. Olano, 507 U.S. 725 (1993).

5 F.B., 852 So. 2d at 229 (quoting Brown v. State, 124 So. 2d 481, 484 (Fla. 1960) (holding that alleged error “did not permeate or saturate the trial with such basic invalidity as to lead to a reversal regardless of a timely objection”)).

6 Id. at 229 (quoting J.B. v. State, 705 So. 2d 1376, 1378 (Fla. 1998) (citations omitted)).

7 Id. (quoting Smith v. State, 521 So. 2d 106, 108 (Fla. 1988) (citations omitted)).

8 Compare Reed v. State, 837 So. 2d 366, 368-69 (Fla. 2002) (concluding that failure to use correct definition of malice in jury instruction was fundamental error when malice was a disputed issue at trial) with Feliciano v. School Bd. of Palm Beach County, 776 So. 2d 306, 308 (Fla. 4th DCA 2000) (citing Rule 1.470(b) to hold that the failure to object to an incorrect jury instruction at the charge conference does not rise to the level of fundamental error).

9 Michael M. Giel, Avoiding Fundamentally Erroneous Jury Instructions: Pointers for Counsel in Criminal Trials and Appeals, 81 Fla. B. J. 61 (July/Aug. 2007).

10 Id.

11 Id.

12 See id.; see also Ray v. State, 403 So. 2d 956, 959-960 (Fla. 1981).

13 See Reed, 837 So. 2d at 369-70 (“Furthermore, we take this occasion to clarify that fundamental error is not subject to harmless error review. By its very nature, fundamental error has to be considered harmful. If the error was not harmful, it would not meet our requirement for being fundamental.”).

14 Id. at 370.

15 Id.

16 See id. at 576 (citing Neder v. United States, 527 U.S. 1, 7 (1999) (quoting Arizona v. Fulminante, 499 U.S. 279, 309 (1991)).

17 Id.

18 Jackson, 983 So. 2d at 576.

19 See Jordan v. State, 176 So. 3d 920, 929 (Fla. 2015).

20 Fundamental error, 2 Fla. Prac., Appellate Practice §27:3 (2017 ed.).

21 Id.

22 Id.

23 Id.

24 Id.

25 Id. (citing state v. DiGuilio, 491 So. 2d 1129 (Fla. 1986)).

26 Id.

27 Id. (citations and footnotes omitted).

28 Id.

29 See, e.g., Parker v. Dekle, 35 So. 4 (Fla. 1903) (finding fundamental error when trial court allowed the clerk of the court to determine damages when damages should have been decided by a jury).

30 Id. (citation omitted).

31 Id.

32 Valeria Hendricks, Pop Quiz: Why Is Fundamental Error Like Pornography, 76 Fla. B. J. 77 (Nov. 2002).

33 Id. at 77.

34 Id. (citing I.A. v. H.H., 710 So. 2d 62, 165 (Fla. 2d DCA 1998)).

35 Id. at 78 (citing Coleman Co. v. Cargill Int’l Corp., 731 So. 2d 2, 4 (Fla. 3d DCA 1998) and Belmont v. Belmont, 761 So. 2d 406 (Fla. 2d DCA 2000)).

36 See O’Brien v. Fla. Birth-Related Neurological Injury Compensation Ass’n, 710 So. 2d 51, 52 (Fla. 4th DCA 1998).

37 Id. at 137.

38 O’Brien, 710 So. 2d at 52.

39 Id. (citing 84 Lumber Co. v. Cooper, 656 So. 2d 1297 (Fla. 2d DCA 1994)).

40 Id. (citing Florio v. State ex. rel., Epperson, 119 So. 2d 305 (Fla. 2d DCA 1960)).

41 Valeria Hendricks, Pop Quiz: Why Is Fundamental Error Like Pornography, 76 Fla. B. J. at 78-79 (citing Security Bank, N.A. v. Bell South Adver. & Publ’g Corp., 679 So. 2d 795 (Fla. 3d DCA 1996)).

42 Id. (citing Hooters of Am., Inc. v. Carolina Wings, Inc., 655 So. 2d 1231 (Fla. 1st DCA 1995)).

43 Id. (citing Norville v. Bell South Adver. & Publ’g Corp., 664 So. 2d 16 (Fla. 3d DCA 1995); and Wright v. Scott, 658 So. 2d 1215 (Fla. 1st DCA 1995) (parentheticals omitted)).

44 Id. at 1031.

45 Id. at 1030-31.

46 See Olano, 507 U.S. at 732; see also Fed. R. Crim. P. 52(b).

47 See Farley v. Nationwide Mutual Ins., 197 F.3d 1322, 1329-30 (11th Cir. 1999).

48 Id.

49 Id. at 1329-30 (citations omitted); see also §51:30. See generally 12 A Cyc. of Federal Proc. §51:30 (3d ed.).

50 See generally 12 A Cyc. of Federal Proc. §51:30 (3d ed).

51 United States v. Madden, 733 F.3d 1314, 1322-23 (11th Cir. 2013) (citations omitted).

52 Id.; see also United States v. Saenz, 134 F.3d 697, 701 (5th Cir. 1998).

53 See United States v. Dominguez Benitez, 542 U.S. 74 (2004).

54 Henderson v. United States, 568 U.S. 266 (2013).

55 Madden, 733 F.3d at 1322-23 (citations omitted).

56 Id. (citing United States v. Floresca, 38 F.3d 706, 714 (4th Cir. 1994) (en banc) (“[C]onvicting a defendant of an unindicted crime affects the fairness, integrity, and public reputation of judicial proceedings in a manner most serious.”)).

57 See United States v. Marcus, 560 U.S. 258, 263, 130 S. Ct. 2159 (2010) (quoting Puckett v. U.S., 556 U.S. 129 (2009) (internal quotation marks omitted)).

58 Id. (citing Puckett, 129 S. Ct. at 1432).

59 Id. (quoting Johnson v. United States, 520 U.S. 461 (1997) (quoting Arizona v. Fulminante, 499 U.S. 279, 310 (1991)).

60 Id. at 2164-65 (citing United States v. Gonzalez-Lopez, 548 U.S. 140 (2006) (other citations omitted)).

61 Id. at 2168-69 (Stevens, J., dissenting).

62 See Weaver v. Massachusetts, 137 S. Ct. 1899 (2017).

63 Id. at 1907-08.

64 Id.

65 Id. at 1908 (citations omitted).

66 Id. (citation omitted).

67 Id.

68 Id. at 1910 (citation omitted).

69 See Madden, 733 F.3d at 1316.

70 United States v. Brown, 548 F.2d 1194, 1207-08 (5th Cir. 1977).

71 United States v. Kelly, 875 F.3d 781, 785-86 (5th Cir. 2017) (citations omitted).

72 Id. at 785-86; see also Olano, 570 U.S. at 732; United States v. Myers, 280 F.3d 407, 411-12 (4th Cir. 2002); United States v. Reynoso, 276 F.3d 101 (1st Cir. 2002).

73 See, e.g., United States v. Leon, 2017 WL 5495463, at *1 (11th Cir. Nov. 16, 2017).

74 Brough v. Imperial Sterling Ltd., 297 F.3d 1172 (11th Cir. 2002).

75 Pulliam v. Tallapoosa County Jail, 185 F.3d 1182 (11th Cir. 1999); see also Farley, 197 F.3d at 1329-30 (finding trial court did not commit plain error by failing to instruct the jury on the shifting burden in employment discrimination cases); but see Wirtz v. International Harvester Co., 331 F.2d 462, 466 (5th Cir. 1964) (reversing for plain error when trial court gave an erroneous instruction that failed to include the essential ingredients of the cause of action).

Tracy S. Carlin is of counsel at the appellate firm of Brannock & Humphries in Tampa. She is a board certified appellate specialist and obtained her degree from the University of Florida Levin College of Law, where she was inducted into the Order of the Coif.

This column is submitted on behalf of the Appellate Practice Section, Kristin A. Norse, chair, and Brandon Christian and Thomas Seider, editors.

[Revised: 02-26-2018]