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Avoiding Fundamentally Erroneous Jury Instructions: Pointers for Counsel in Criminal Trials and Appeals

Criminal Law

Whether reviewing instructions before they go to the jury or perusing them on appeal, revisit the doctrine of fundamental error. Faulty jury instructions are one of the greatest sources of reversible error.1

The avowed function of the jury instruction is to state the substantive law as a textbook for the jury, … against a background of the individual case, without invading the province of the jury. An improper instruction not only violates the accused’s Fifth Amendment Due Process rights to a fair trial, but also the derivative Sixth Amendment jury trial right. One may question the impact a jury instruction has on deliberations, but if the jury followed the law, which it swore to uphold, then the verdict is predicated upon the legal premises provided in the jury instructions. It follows logically that an erroneous view of the legal principles will be reflected in the verdict. A faulty instruction to the jury is a type of virus or cancerous metastasis; it plants seeds of error that have infectious proportions.2

To help counsel who would rather not plant these seeds, this article 1) reviews the Florida Supreme Court’s definition of fundamental error; 2) clarifies periodically misconstrued language in Reed v. State, 837 So. 2d 366 (Fla. 2002); and 3) summarizes common scenarios where fundamentally erroneous jury instructions may arise.

Definition of Fundamental Error
Fundamental error is that which undermines the trial’s legality such that the guilty verdict could not have been obtained without the error.3 Such an error must “so permeate the proceeding as to convert it into a ‘mere pretense of a trial’ [or] … strike at the fundamental legality of the trial itself.”4 The court in Ray v. State, 403 So. 2d 956, 960 (Fla. 1981), emphasized that “the error must amount to a denial of due process” to be fundamental:

Fundamental error … [is] “error which goes to the foundation of the case or goes to the merits of the cause of action.” The appellate courts, however, have been cautioned to exercise their discretion concerning fundamental error “very guardedly.” … [T]he doctrine of fundamental error should be applied only in the rare cases where a jurisdictional error appears or where the interests of justice present a compelling demand for its application.5

The court’s rhetoric regarding fundamental error and instructions on affirmative defenses or offense elements has remained consistent. Smith v. State, 521 So. 2d 106, 108 (Fla. 1988), held no fundamental error occurred where an erroneous instruction shifted the burden of proof on the defense of insanity:

[W]e cannot say that [the inadequate insanity instruction] was so flawed as to deprive defendants claiming the defense of insanity of a fair trial. Despite any shortcomings, the standard jury instructions, as a whole, made it quite clear that the burden of proof was on the state to prove all the elements of the crime beyond a reasonable doubt.6

State v. Delva, 575 So. 2d 643, 644-45 (Fla. 1991), found no fundamental error where the instruction omitted an undisputed element:

“[T]he 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.” In other words, “fundamental error occurs only when the omission is pertinent or material to what the jury must consider in order to convict.”7

The failure to instruct on voluntary intoxication as a defense to felony murder based on kidnapping, a specific-intent crime, was not fundamental error in Sochor v. State, 619 So. 2d 285, 290 (Fla. 1993) (citations omitted):

Failure to give an instruction unnecessary to prove an essential element of the crime charged is not fundamental error. Voluntary intoxication is a defense to, but not an essential element of, kidnapping. Therefore, the state did not have to disprove voluntary intoxication … to convict Sochor of felony murder based on the underlying felony of kidnapping. Because the … instruction went to Sochor’s defense and not to an essential element of the crime charged, an objection was necessary to preserve this issue on appeal.

The same themes appeared in the court’s reprise of instructional error in Battle v. State, 911 So. 2d 85, 89 (Fla. 2005) (citations and internal quotation marks omitted):

[I]f a court fails to include all essential elements in a jury instruction and the defendant does not object at trial, the omission can be raised on appeal only if fundamental error occurred. Fundamental error is error [which] reaches 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. Fundamental error only occurs when the omission is pertinent or material to what the jury must consider in order to convict.

“[A]ll fundamental error
is harmful.”
With this background, the court’s language in Reed v. State merits examination. Reed clarified that “fundamental error is not subject to harmless error review. 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.”8 Fundamental 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.”9 Reed further stated that “for error to meet this standard, it must follow that the error prejudiced the defendant. Therefore, all fundamental error is harmful error. However, we likewise caution that not all harmful error is fundamental.”10
It is easy to misconstrue Reed’s statement that “fundamental error is not subject to harmless error review.” Reed does not hold that, whenever a court labels an error “fundamental,” reversal is automatic because the error’s harmlessness cannot be considered. Rather, Reed sensibly observes that, if the error is harmless, then it cannot be said the error undermined the trial’s validity such that a guilty verdict could not otherwise have been obtained. Judge Chris W. Altenbernd of the Second District Court of Appeal has repeatedly highlighted this distinction.
Vega v. State, 900 So. 2d 572, 573 (Fla. 2d DCA 2004), reversed a conviction in which the defendant was charged by information with intentionally touching or striking a law enforcement officer, but the jury was instructed to convict if he either struck the officer or caused bodily harm. Judge Altenbernd concurred, citing precedent, but stated that, under Supreme Court cases including Reed, “most, if not all, errors that are harmless beyond a reasonable doubt in their context should not be treated as fundamental errors.”11
He expanded this point in Sampson v. State, 903 So. 2d 1055, 1058-59 (Fla. 2d DCA 2005) (Altenbernd, C.J., concurring), addressing the “considerable confusion about … Reed”:
[S]ome attorneys have focused too narrowly on the sentence in Reed that states: “its very nature, fundamental error has to be considered harmful.” Reed, 837 So. 2d at 369. Read outside its context, this sentence appears to suggest that fundamental error is a form of per se error that must be regarded or deemed harmful without a review of the record. Read in context, we are convinced that the [S]upreme [C]ourt announced exactly the opposite rule. The “nature” of fundamental error can only be evaluated from the record. The record must demonstrate the harm before the error can be considered fundamental.
Judge Altenbernd reiterated in Weaver v. State, 916 So. 2d 895, 898 (Fla. 2d DCA 2005), that Reed did not “convert any error labeled as ‘fundamental’ into per se error, but … explain[ed] that the nature of fundamental error must be evaluated based upon the record, and the record must demonstrate the harm before the error can be considered fundamental.”
This distinction is too often overlooked. Many courts and attorneys properly apply Reed.12 Others do not, and several opinions explicitly rely on Reed to refuse to consider whether an alleged error was harmless.13 If the court can determine beyond a reasonable doubt the error did not affect the verdict, then the guilty verdict was obtained without the assistance of the error, and the error was not fundamental.

Common Instructional Errors Deemed Fundamental
With the Supreme Court’s definition in mind, it is helpful to consider the most common issues implicating fundamental error. This summary is not exhaustive, but merely offers guidance for counsel facing similar issues below or on appeal.
Elements of the Offense — Courts are required to correctly instruct the jury on the essential elements of the charged crime.14 Accordingly, an improper instruction on a disputed element may be fundamentally erroneous.15
However, “the failure to instruct the jury on an essential element of the offense is not fundamental error if the element was undisputed and established by record evidence.”16 In certain circumstances, the instructions’ omission of two statutory elements of the offense may not constitute fundamental error.17 Courts may examine the appellant’s claim that an element was disputed to determine whether an element was in material dispute.18
Affirmative Defenses — The failure to instruct on an affirmative defense generally is not fundamental error.19 For example, Wright v. State, 920 So. 2d 21, 25 (Fla. 4th DCA 2005), held that where “[l]ack of knowledge of the illicit nature of a controlled substance” was an affirmative defense rather than an essential element, a court’s failure to deliver a guilty knowledge instruction was not fundamentally erroneous.20
The most common example of a fundamentally erroneous affirmative defense instruction involves the forcible felony exception to self-defense. This issue originates from Giles v. State, 831 So. 2d 1263, 1264 (Fla. 4th DCA 2002), in which the court found the self-defense instruction was misleading. Giles claimed self-defense and received instructions on the justifiable use of force. Over objection, the court also instructed the jury that “[t]he use of force not likely to cause death or great bodily harm is not justifiable if you find that the defendant was attempting to commit, committing or escaping after the commission of an aggravated battery.”21 This was improper because Giles committed only one act — aggravated battery — rather than an independent forcible felony that would have justified the forcible felony instruction:

The instruction given improperly told the jury that the very act Giles sought to justify itself precluded … justification. Essentially, the jury was instructed that 776.041(1) would apply to preclude a self-defense claim, when it is claimed that the acts with which the defendant is charged are themselves committed in appropriate self-defense. Thus, even if the jury found that Giles’ act of aggravated battery was committed in self-defense, then the use of force was not justifiable because the act itself is a forcible felony.22

The court concluded that the “instruction given was circular and confusing to the jury such that it basically negated Giles’ defense,” which was not harmless.23
The Fourth District did not decide in Giles whether this error was fundamental, but held in Rich v. State, 858 So. 2d 1210, 1210-11 (Fla. 4th DCA 2003), that it was. After Giles and Rich, courts considering the forcible felony exception where defendants were charged with single crimes found fundamental error as a matter of course.24 Courts found fundamental error even when the counts alleged crimes against multiple victims.25 The mere fact that the self-defense claims bordered on absurd was irrelevant.26
On the other hand, a recent trend indicates courts are more closely considering the issue. Several decisions have ruled that no fundamental error occurred when the defendant was not entitled to a self-defense instruction.27 However, two recent Second District opinions distinguished the Thomas line of cases and declined to state whether they agreed with their reasoning.28
The Fifth District considered the instruction en banc in Sloss v. State, 31 Fla. L. Weekly D879, 2006 Fla. App. LEXIS 4231 (Fla. 5th DCA Mar. 24, 2006), and certified this question to the Supreme Court: “Does fundamental error occur when an erroneous jury instruction relates only to an affirmative defense and not an essential element of the crime?” The Florida Supreme Court accepted jurisdiction on May 30, 2006, in State v. Sloss, 929 So. 2d 1054 (Fla. 2006), though it may not decide the case on the merits in light of its unique procedural posture.29 Meanwhile, courts continue to find the forcible felony instruction is fundamentally erroneous if the defendant argues self-defense and there is evidence supporting that defense.30
Conjunction Junction — Counsel should painstakingly review conjunctions within the instructions and, if possible, eliminate the use of “and/or.” In cases involving conspiracy or multiple defendants, the use of “and/or” often invites fundamental error.31 The First and Second district courts hold that a standard “principals” instruction does not cure the improper use of “and/or” between co-defendants’ names.32 The Fourth District disagrees, holding that a standard “principals” instruction may place the instructions in their proper context and prevent fundamental error from occurring.33 Additionally, the use of “and/or” may not be fundamentally erroneous if the instructions still require the defendant to be one of the conspirators.34 The use of “and/or” between victims does not constitute fundamental error where the defendant may be convicted based on his offense against either victim.35
Ultimately, counsel should heed Justice Glenn Terrell’s admonition:

[W]e take our position with that distinguished company of lawyers who have condemned [the] use [of “and/or”]. It is one of those inexcusable barbarisms which was sired by indolence and damned by indifference, and … [t]he coiner of it certainly had no appreciation for terse and concise law English.36

“Or” may also signal trouble. When a conviction requires that the jury find the existence of several elements, the use of “or” rather than “and” between elements may allow the jury to find the defendant guilty without finding all elements, which results in fundamental error.37 Another conjunction problem arises when a crime can be committed several ways, but the information charges only a certain manner in which the crime was committed. When the information alleges that only certain prohibited acts occurred, fundamental error may occur if the instructions permit conviction for uncharged acts.38
The Second District recently followed Vega to conclude that fundamental error occurs when the instructions addressed both manners in which battery on a law enforcement officer may be committed, though only one was charged and argued: Weaver v. State, 916 So. 2d 895 (Fla. 2d DCA 2005), rev. granted, 926 So. 2d 1270 (Fla. 2006); Weaver v. State, 926 So. 2d 397 (Fla. 2d DCA 2006). In each case, the court certified the following question: “Does a trial court commit fundamental error when it instructs a jury regarding both ‘bodily harm’ battery on a law enforcement officer and ‘intentional touching’ battery on a law enforcement officer when the information charged only one form of the crime and no evidence was presented nor argument made regarding the alternate form?”39 The Florida Supreme Court accepted jurisdiction, and its decision bears watching.40
Invited Error — The doctrine of invited error adds a final wrinkle to arguing fundamental error. When a party affirmatively requests an instruction, appellate courts view unfavorably arguments that the instruction was fundamentally erroneous. As Judge Sawaya stated in Caldwell v. State, 920 So. 2d 727, 732-33 (Fla. 5th DCA 2006) (citations omitted):

An instructional mistake does not rise to the level of fundamental error when defense counsel affirmatively requests the deletion or alteration of the jury instruction that subsequently forms the basis of the requested relief in the appellate court. In this instance, the policy considerations that animate strict compliance with the contemporaneous objection rule become far more weighty …. [T]o allow the defendant to seek sanctuary in the appellate courts by asserting that an error of his own making entitles him to reversal … and a new day in court would encourage the sort of chicanery that the contemporaneous objection rule seeks to eliminate.41

This summary presented several scenarios when counsel drafting jury instructions should be especially wary, but it is more important to remember the general definition of fundamental error: That which “reaches 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.” Be prepared to address fundamental error even if no other court has held the instruction at issue to be erroneous.42 Finally, remember that if the error is harmless, it is not fundamental.

1 Derrick Augustus Carter, A Restatement of Exceptions to the Preservation of Error Requirement in Criminal Cases, 46 Kan. L. Rev. 947, 957 (1998) (quoting Skidmore v. Baltimore & O.R. Co., 167 F.2d 54, 65 (2d Cir. 1948)). See generally Robert J. Martineau, Considering New Issues on Appeal: The General Rule and the Gorilla Rule, 40 Vand. L. Rev. 1023, 1052 (1987) (noting that findings of plain or fundamental error often involve either an improper instruction or the failure to give an instruction).
2 Derrick Augustus Carter, A Restatement of Exceptions to the Preservation of Error Requirement in Criminal Cases, 46 Kan. L. Rev. at 960-61 (1998) (footnotes and citations omitted).
3 Hamilton v. State, 88 So. 2d 606, 607 (Fla. 1956).
4 Id. at 608.
5 Accord F.B. v. State, 852 So. 2d 226, 229 (Fla. 2003); Sochor v. State, 619 So. 2d 285, 290 (Fla. 1993); Smith v. State, 521 So. 2d 106, 108 (Fla. 1988).
6 See also Holiday v. State, 753 So. 2d 1264, 1268-70 (Fla. 2000) (holding that Smith controlled the question of whether an instruction that did not accurately reflect the burden of proof on entrapment was fundamental error).
7 Quoting Stewart v. State, 420 So. 2d 862, 863 (Fla. 1982) (citations omitted) (finding no fundamental error where instructions omitted an undisputed element of the crime); cf. Reed v. State, 837 So. 2d 366, 369 (Fla. 2002) (holding that instruction lowering state’s burden of proof on a disputed element constituted fundamental error because “the inaccurate definition ‘[was] pertinent or material to what the jury must consider in order to convict’”).
8 Reed, 837 So. 2d at 369-70 (footnote omitted and emphasis added).
9 Id. at 370 (citation omitted).
10 Id. The court in footnote 3 receded from State v. Clark, 614 So. 2d 453 (Fla. 1992), to the extent it held fundamental error can be harmless. Clark had noted that, in State v. DiGuilio, 491 So. 2d 1129, 1134 (1986), the court recognized that most constitutional errors are subject to harmless error analysis. Clark, 614 So. 2d at 454.
11 Vega v. State, 900 So. 2d at 574 (Fla. 2d D.C.A. 2004) (Altenbernd, C.J., concurring).
12 See, e.g., Crumbley v. State, 876 So. 2d 599, 601 n.2 (Fla. 5th D.C.A. 2004) (stating that, with unpreserved error, “we must employ the fundamental error analysis to determine whether further review of the alleged error is appropriate. Having already determined that the error is harmless, application of the fundamental error analysis becomes unnecessary”).
13 See Williams v. State, 937 So. 2d 771, 774 (Fla. 1st D.C.A. 2006); Moore v. State, 903 So. 2d 341, 343 (Fla. 1st D.C.A. 2005); Williams v. State, 901 So. 2d 899, 900 (Fla. 4th D.C.A. 2005).
14 See, e.g., Battle, 911 So. 2d at 88.
15 See Reed, 837 So. 2d at 370 (holding instruction improperly lowered state’s burden to prove disputed element of “malice” and caused fundamental error); Hernandez v. State, 919 So. 2d 707, 709-10 (Fla. 5th D.C.A. 2006) (reversing where jury was not instructed to determine amount of drugs in which defendant conspired to traffic); Jennings v. State, 920 So. 2d 32, 34-35 (Fla. 2d D.C.A. 2005) (determining failure to instruct on victim’s status, one element of lewd and lascivious molestation of a disabled victim, constituted fundamental error where evidence established only mild or moderate retardation).
16 Rosen v. State, 940 So. 2d 1155, 1162 (Fla. 5th D.C.A. 2006) (citation omitted); see also Battle, 911 So. 2d at 89 (concluding instructions’ failure to address an essential but undisputed element was not fundamental error); Pena v. State, 901 So. 2d 781, 784-85 (Fla. 2005) (holding failure to instruct jury to determine defendant’s age was not fundamental error).
17 See Rosen, 940 So. 2d at 1163 (affirming where elements of defendant’s and victims’ ages were undisputed and established by record evidence); Lane v. State, 867 So. 2d 539, 540-42 (Fla. 1st D.C.A. 2004) (affirming where defendant’s knowledge of victim’s occupation was undisputed, and where erroneous omission of theft element from one count — resisting effort to recover stolen property instruction — was remedied by jury’s finding of guilt on theft count).
18 See Thomas v. State, 933 So. 2d 45, 48 (Fla. 4th D.C.A. 2006) (holding that isolated statements in closing argument did not put into dispute the element of whether property was taken from victim’s custody); Guitterrez v. State, 837 So. 2d 1095, 1097 (Fla. 4th D.C.A. 2003) (noting that the question for fundamental review was not whether the arrest was lawful, but whether the lawfulness was in material dispute at trial).
19 See, e.g., Sochor v. State, 619 So. 2d 285, 290 (Fla. 1993).
20 See Bridges v. State, 878 So. 2d 483, 484 (Fla. 4th D.C.A. 2004) (finding no fundamental error in failure to instruct on justifiable use of nondeadly force where defendant received requested instruction on justifiable use of deadly force).
21 Giles, 831 So. 2d at 1264. This “forcible felony” instruction is based on Fla. Stat. §776.04, which applies only where the defendant claiming self-defense was engaged in an independent forcible felony at the time. Id. at 1265 (citing Perkins v. State, 576 So. 2d 1310 (Fla. 1991)).
22 Id. at 1266.
23 Id. (citations omitted).
24 See, e.g., Humbert v. State, 922 So. 2d 997, 997-98 (Fla. 2d D.C.A. 2005); Craven v. State, 908 So. 2d 523, 524 (Fla. 4th D.C.A. 2005); Hawk v. State, 902 So. 2d 331, 332-33 (Fla. 5th D.C.A. 2005); Estevez v. State, 901 So. 2d 989, 990-92 (Fla. 4th D.C.A. 2005); Carter v. State, 889 So. 2d 937, 939-40 (Fla. 5th D.C.A. 2004); Velazquez v. State, 884 So. 2d 377, 377-78 (Fla. 2d D.C.A. 2004); Cleveland v. State, 887 So. 2d 362, 363 (Fla. 5th D.C.A. 2004); Zuniga v. State, 869 So. 2d 1239, 1240 (Fla. 2d D.C.A. 2004).
25 See Houston v. State, 919 So. 2d 489, 490 (Fla. 2d D.C.A. 2005); Shepard v. Crosby, 916 So. 2d 861, 863-64 (Fla. 4th D.C.A. 2005); Ruiz v. State, 900 So. 2d 733, 733-34 (Fla. 4th D.C.A. 2005); Bates v. State, 883 So. 2d 907, 908 (Fla. 2d D.C.A. 2004).
26 See Gilchrist v. State, 938 So. 2d 654, 656-57 (Fla. 4th D.C.A. 2006) (holding self-defense instruction was fundamentally erroneous where defendant convicted of battering two pregnant women had claimed self-defense); Bevan v. State, 908 So. 2d 524, 525 (Fla. 2d D.C.A. 2005) (reversing conviction where defendant claimed self-defense; he confronted two men installing a pool enclosure on a neighbor’s property, chased them with golf clubs, threw their tools into the pool, rammed their truck with his car, and beat out their windows with a golf club); Bates, 883 So. 2d at 907-08 (Fla. 2d D.C.A. 2004) (finding fundamental error where defendant unlawfully displayed a shotgun barrel to a mother and her two boys after they argued with defendant about moving his truck so they could exit a parking lot).
27 See Martinez v. State, 933 So. 2d 1155, 1167 (Fla. 3d D.C.A. 2006) (affirming when defendant did not rely exclusively on self-defense, and record did not support self-defense claim), appeal docketed, No. SC06-1597 (Fla. Aug. 8, 2006); Sutton v. State, 929 So. 2d 1105, 1107 (Fla. 4th D.C.A. 2006) (finding no fundamental error where evidence adduced at trial did not support a self-defense instruction), receded from on other grounds in Yisreal v. State, 938 So. 2d 546 (Fla. 4th D.C.A. 2006); accord Thomas v. State, 918 So. 2d 327, 329-30 (Fla. 1st D.C.A. 2005); Hickson v. State, 917 So. 2d 939, 940-41 (Fla. 4th D.C.A. 2005).
28 See Flynn v. State, 947 So. 2d 1229, 1230 (Fla. 2d D.C.A. 2007) (declining to state whether it agreed with fundamental error analyses in Martinez, Sutton, and Thomas); Ortiz v. State, 942 So. 2d 1013, 1015 (Fla. 2d D.C.A. 2006) (refusing to state whether court agreed with reasoning in Sutton and Thomas because defendants are entitled to instructions on their theories of defense if any evidence supports their theories).
29 Five judges concluded the instruction negates the defendant’s sole defense; the other five believed that Supreme Court precedent required the defendant to object to the erroneous instruction because it pertained to an affirmative defense. Sloss, 31 Fla. L. Weekly D879 (Griffin, J., concurring specially, and Orfinger, J., concurring in part and dissenting in part). In late April 2007, Florida Supreme Court proceedings in Sloss were stayed, pending its resolution of Martinez. The Fifth District has since certified the question in three other cases. Blanton v. State, 32 Fla. L. Weekly D670 (Fla. 5th D.C.A. Mar. 9, 2007); Slattery v. State, 32 Fla. L. Weekly D305 (Fla. 5th D.C.A. Jan. 26, 2007); Zinnerman v. State, 942 So. 2d 932, 933 (Fla. 5th D.C.A. 2006).
30 See, e.g., Wilson v. State, 944 So. 2d 1244 (Fla. 2d D.C.A. 2006); Smith v. State, 933 So. 2d 1275, 1277 (Fla. 2d D.C.A. 2006). The standard jury instructions for criminal cases have been amended to reflect that the forcible felony exception instruction should be given only if the defendant is charged with more than one forcible felony. In re: Standard Jury Instructions in Criminal Cases, 947 So. 2d 1159, 1159 (Fla. 2007).
31 See Harris v. State, 937 So. 2d 211, 212 (Fla. 3d D.C.A. 2006) (finding use of “and/or” permitted jury to base defendant’s conviction solely on co-defendant’s acts); Tersigni v. State, 940 So. 2d 1154, 1155 (Fla. 2d D.C.A. 2006) (holding appellate counsel was ineffective for failing to argue use of “and/or” between defendant’s and co-defendant’s names was fundamentally erroneous); Concepcion v. State, 857 So. 2d 299, 301-02 (Fla. 5th D.C.A. 2003) (holding use of “or” between defendants’ names in written instructions was fundamental error, though court’s oral instructions were correct).
32 Davis v. State, 922 So. 2d 279, 279 (Fla. 1st D.C.A. 2006); Zeno v. State, 910 So. 2d 394, 396 (Fla. 2d D.C.A. 2005).
33 Garzon v. State, 939 So. 2d 278, 283-84 (Fla. 4th D.C.A. 2006); cf. Santos v. State, 947 So. 2d 705 (Fla. 4th D.C.A. 2007) (Taylor, J., concurring specially) (agreeing Garzon required court to affirm, but arguing Garzon’s dissent and Harris v. State, 937 So. 2d 211 (Fla. 3d D.C.A. 2006), were more persuasive).
34 See Casimir v. McDonough, 932 So. 2d 471, 474 (Fla. 3d D.C.A. 2006), or if the co-defendant was tried simultaneously and acquitted by the jury, see Tolbert v. State, 922 So. 2d 1013, 1016 (Fla. 5th D.C.A. 2006).
35 Wilson v. State, 933 So. 2d 598, 600 (Fla. 3d D.C.A. 2006).
36 Cochrane v. Fla. E. Coast Ry. Co., 145 So. 217, 218-19 (Fla. 1932), quoted by Miller v. State, 918 So. 2d 415, 416 n.1 (Fla. 2d D.C.A. 2006); see also William Strunk, Jr. & E.B. White, The Elements of Style 40 (4th ed. 2000) (defining “[a]nd/or” as “[a] device, or shortcut, that damages a sentence and often leads to confusion or ambiguity”).
37 Miller v. State, 918 So. 2d 415, 416-17 (Fla. 2d D.C.A. 2006).
38 See Debose v. State, 920 So. 2d 169, 169 (Fla. 1st D.C.A. 2006) (reversing where state charged three ways defendant committed aggravated battery, but instruction addressed all four ways aggravated battery could occur); Trahan v. State, 913 So. 2d 729, 730 (Fla. 5th D.C.A. 2005) (concluding instructions permitting jury to convict for a crime not charged in the information were fundamentally erroneous, even if the uncharged crime involved alternate factual theory to prove charged offense); Eaton v. State, 908 So. 2d 1164, 1165 (Fla. 1st D.C.A. 2005) (reversing where instructions provided jury could convict if it found sexual union or penetration, but information alleged only sexual penetration); Vega, 900 So. 2d at 573 (reversing where court instructed jury to convict if defendant intentionally touched or struck officer against his will or caused bodily harm; the charging information alleged only that defendant intentionally touched or struck officer); cf. Cogbill v. State, 940 So. 2d 537, 540 (Fla. 1st D.C.A. 2006) (finding no reversible error where it could “be determined with certainty that instructing the jury on the uncharged alternative [act] did not result in a circumstance in which [defendant] was at risk of being convicted of an uncharged crime”).
39 Weaver v. State, 916 So. 2d 895, 898-99 (Fla. 2d D.C.A. 2005); Weaver v. State, 926 So. 2d 397, 399 (Fla. 2d D.C.A. 2006).
40 State v. Weaver, 926 So. 2d 1270 (Fla. 2006).
41 See also Weber v. State, 602 So. 2d 1316, 1319 (Fla. 5th D.C.A. 1992) (holding that counsel may not “sandbag the trial judge by requesting and approving an instruction they know … will result in an automatic reversal, if given”); but see Swanson v. State, 921 So. 2d 852, 853 (Fla. 2d D.C.A. 2006) (finding fundamental error despite the fact defense counsel “sought the erroneous instruction at trial”).
42 Consider the ballooning of cases since 2002 that find the forcible felony instruction to be fundamentally erroneous, a conclusion rejected since McGahee v. State, 600 So. 2d 9, 10-11 (Fla. 3d D.C.A. 1992) (Schwartz, J., dissenting). Counsel cannot assume that an unproblematic instruction will always be so perceived.

Michael M. Giel clerks for Judge Emerson R. Thompson, Jr., of the Fifth District Court of Appeal. He graduated in 2005 from the University of Chicago Law School, where he was a member of the Chicago Journal of International Law, and graduated cum laude from the University of South Florida in 2002.

This column is submitted on behalf of the Appellate Practice Section, Steven Brannock, chair, and Tracy R. Gunn, Kristin A. Norse, and Heather M. Lammers, editors.

Criminal Law