DEVORE L. THOMAS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Devore Thomas appeals his conviction for aggravated battery, challenging a faulty jury instruction on attempted voluntary manslaughter—a lesser included offense. The appellate court reverses, holding that the defective instruction on the next-lower crime constitutes fundamental error that cannot be harmless when the jury's verdict form presentation could mislead jurors about the relative seriousness of offenses.
The faulty instruction on attempted voluntary manslaughter is not harmless error. When the jury instructions and verdict form present offenses in an order suggesting descending seriousness but the jury is not properly instructed on the next-lower crime, it is impossible to determine whether the jury would have convicted on that lesser offense if properly instructed.
[1] A faulty jury instruction on a lesser included offense constitutes fundamental error when the defendant is convicted of a greater offense and the jury is not properly ins…
[2] It is impossible to determine whether a jury would have convicted a defendant of a lesser offense if it was not properly instructed on that offense.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“If the jury is not properly instructed on the next lower crime, then it is impossible to determine whether, having been properly instructed, it would have found the defendant guilty of the next lesser offense.”
Establishes the fundamental principle that improper instruction on a lesser included offense prevents harmless error analysis
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Join FLexlaw to unlock all legal intelligenceThomas was charged with attempted first-degree murder and proceeded to trial before a jury. The trial court issued jury instructions on several lesser…
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Devore Laron Thomas (defendant) appeals his conviction for aggravated battery. Determining that the trial court fundamentally erred by issuing a faulty jury instruction on attempted voluntary manslaughter, we reverse.
The defendant was charged with attempted first-degree murder. The matter proceeded to trial before a jury. During the jury charge, the trial court issued instructions on several lesser included offenses, including attempted voluntary manslaughter. The instructions and verdict form presented the offenses in the following order: attempted second-degree murder, aggravated battery, attempted voluntary manslaughter, and battery. The jury found the defendant guilty of aggravated battery.1
The Florida Supreme Court has ruled that the standard jury instruction on manslaughter is defective. State v. Montgomery, 39 So.3d 252, 257 (Fla.2010). In Montgomery, the Court further stated that failing to properly instruct the jury on manslaughter, when it is one step below the crime for which the defendant is convicted, is fundamental error. Id. at 259. “If the jury is not properly instructed on the next lower crime, then it is impossible to determine whether, having been properly instructed, it would have found the defendant guilty of the next lesser offense.” Pena v. State, 901 So.2d 781, 787 (Fla. 2005). Our court has recently applied Montgomery to attempted voluntary manslaughter. Burton v. State, — So.3d -, 2011 WL 1326258 (Fla. 5th DCA 2011).
Both parties agree that the trial court issued a faulty instruction on the lesser included offense of attempted voluntary manslaughter. The State maintains, however, that the issuance of the faulty in*882struction was harmless because aggravated battery is actually a lesser included offense of attempted voluntary manslaughter. We disagree. The error was not harmless because, based on the order in which the charges were set forth in the instructions and verdict form, the jury could reasonably have concluded that the offenses were presented in descending order of seriousness and that attempted voluntary manslaughter was less serious than aggravated battery. As such, “it is impossible to determine whether the jury, if given the opportunity, would have ‘pardoned’ the defendant,” State v. Abreau, 363 So.2d 1063, 1064 (Fla.1978), by convicting him of attempted voluntary manslaughter under a proper instruction.
Accordingly, we reverse the defendant’s conviction and sentence for aggravated battery, and remand for a new trial As in Burton, we certify that this decision conflicts with the Fourth District’s decision in Williams v. State, 40 So.3d 72 (Fla. 4th DCA 2010), rev. granted, 64 So.3d 1262, 2011 WL 2567536 (Fla.2011).
REVERSED and REMANDED; CONFLICT CERTIFIED.
LAWSON and JACOBUS, JJ., concur.
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Citator
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Richards v. State, 128 So. 3d 959 (Fla. 2d DCA 2013)…appears as follows: . There appears to be some confusion regarding the proper order in which to place attempted manslaughter and aggravated battery on a verdict form. See, e.g., Graham v. State, 100 So. 3d 755 (Fla. 1st DCA 2012); Thomas v. State, 91 So. 3d 880 (Fla. 5th DCA 2012). The record in this case reflects that the parties prepared the verdict form in the manner dictated by the supreme court in Sanders v. State, 944 So. 2d 203, 207 (Fla.2006), which states, While reclassification and enhancement s…
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Graham v. State, 100 So. 3d 755 (Fla. 1st DCA 2012)…y convicted Ms. Graham of aggravated battery, the lesser-included offense listed last on the verdict form, but the lesser-included offense listed last on the verdict form was not the least serious lesser-included offense listed. See Thomas v. State, 91 So. 3d 880, 881-82 (Fla. 5th DCA 2012) (“The State maintains, however, that the issuance of the faulty instruction was harmless because aggravated battery is actually a lesser included offense of attempted voluntary manslaughter. We disagree.”). Assuming argu…
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McCOY v. State, 194 So. 3d 1058 (Fla. 1st DCA 2016)…in jury instructions is not fundamental error in this district. See Graham v. State, 100 So. 3d 755 (Fla. 1st DCA 2012). For that reason, McCoy urges this Court to certify conflict between Graham and the Fifth District’s decision in Thomas v. State, 91 So. 3d 880 (Fla. 5th DCA 2012). In Thomas, the defendant was convicted of aggravated battery, but the Fifth District reversed the conviction and sentence. It remanded the case for a new trial, holding. that “the trial court fundamentally erred” in the way it l…1 / 2
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. Montgomery, 39 So. 3d 252 (Fla. 2010)
- Grant v. State, 363 So. 2d 1063 (Fla. 1978)
- Amos Augustus Williams v. State, 40 So. 3d 72 (Fla. 4th DCA 2010)
- Pena v. State, 901 So. 2d 781 (Fla. 2005)
- BIR v. State, 64 So. 3d 1262 (Fla. 1st DCA 2011)