JARRELL L. LATHAN

v.

STATE OF FLORIDA

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FIFTH DISTRICT

NOT FINAL UNTIL TIME EXPIRES TO

FILE MOTION FOR REHEARING AND

DISPOSITION THEREOF IF FILED

JARRELL L. LATHAN,

Petitioner,

v. Case No. 5D18-1979

STATE OF FLORIDA,

Respondent.

________________________________/

Opinion filed May³, 2019

Petition Alleging Ineffective Assistance of Appellate Counsel, A Case of Original Jurisdiction.

Jarrell L. Lathan, Orlando, pro se.

Ashley Moody, Attorney General, Tallahassee, and L. Charlene Matthews, Assistant Attorney General, Daytona Beach, for Respondent.

LAMBERT, J.

Jarrell L. Lathan petitions this court for relief under Florida Rule of Appellate Procedure 9.141(d). Lathan was convicted after trial of attempted second-degree murder with a firearm and contends that his appellate counsel ineffectively represented him during his direct appeal by failing to argue that the trial court committed fundamental error by not instructing the jury on the necessarily lesser included offense of attempted

Lathan was charged with attempted first-degree murder with a firearm but was convicted of the lesser included offense of attempted second-degree murder with a firearm. The jury also separately found that during the commission of this offense, Lathan actually possessed and discharged a firearm, inflicting great bodily harm on the victim. The trial court sentenced Lathan to serve a twenty-five-year mandatory minimum prison sentence. In the light most favorable to the State, the evidence at trial established that Lathan began arguing with his wife because he believed that she was being unfaithful to their marital vows. The argument escalated when Lathan struck his wife, put his hands around her neck, pointed a gun at her, and then threatened to kill her. As his wife tried to escape through the front door of their apartment, Lathan shot her through the abdomen. Lathan immediately fled the scene and shortly thereafter led law enforcement on an approximately fifteen-mile high speed chase that included pursuit by Orange County Sheriff deputies both in squad cars and by helicopter. Lathan turned off his headlights in an effort to avoid detection and bypassed stop sticks that law enforcement had placed in the road to puncture his tires. Lathan ultimately crashed his car in the front yard of a home and then ran from his car and hid in the homeowner’s backyard. He was finally stopped by a K-9 officer, who bit Lathan in the leg and detained him until the pursuing law enforcement officers could place Lathan under arrest.

Lathan’s appellate counsel raised one issue in the direct appeal. Lathan had also been convicted at trial of aggravated battery causing great bodily harm or with a firearm;

Mandate issued in the direct appeal on June¹³, 2017. Approximately six months earlier, the Florida Supreme Court had issued its opinion in Walton v. State, 208 So. 3d 60 (Fla. 2016). There, the defendant had been convicted at trial of the charged offense of attempted second-degree murder. Id. at 64. The supreme court held that the trial court committed fundamental error by failing to instruct the jury on attempted manslaughter by act as a lesser included offense of attempted second-degree murder. Id. The court wrote that because attempted manslaughter by act is a necessarily lesser included offense of attempted second-degree murder,² the trial court had no discretion but to instruct the jury

1 Lathan was additionally convicted of aggravated assault with a firearm, battery, fleeing or attempting to elude a law enforcement officer at high speed or with wanton disregard, and resisting an officer without violence. These convictions and resulting sentences were not challenged on direct appeal and are not at issue in this proceeding.

2 There are two categories of lesser included offenses—necessary, or category one, and permissive, also called category two. Sanders v. State, 944 So. 2d 203, 206

(Fla. 2006). An offense is a necessary or category one lesser included offense “[i]f the statutory elements of the lesser included offense are always subsumed by those of the charged offense.” Stevens v. State, 195 So. 3d 403, 405 (Fla. 2d DCA 2016) (citing Williams v. State, 957 So. 2d 595, 598 (Fla. 2007)).

3 The Florida Supreme Court, in a later four-to-three decision, reiterated its decision in Walton that a trial court commits fundamental error, entitling the defendant to a new trial, when the defendant is charged with attempted second-degree murder, counsel does not request a jury instruction on the necessarily lesser included offense of attempted manslaughter by act, and the trial court does not give such an instruction. See Roberts v. State, 242 So. 3d 296, 299 (Fla. 2018). The Roberts decision was released approximately eight and one-half months after the mandate was issued in Lathan’s direct appeal. Lathan understandably has not asserted that his counsel was ineffective for failing to argue this later decision in Roberts.

4 See State v. Abreau, 363 So. 2d 1063, 1064 (Fla. 1978) (holding that the trial court’s failure to give a requested jury instruction on a necessarily included offense one step removed from the charged offense is per se reversible error but that the omission of an instruction on an offense that is two or more steps removed is subject to a harmless error analysis). Abreau, however, is distinguishable from the present case because there the defendant was convicted as charged. Id. Thus, the trial court did give the category one lesser included instruction that was only one step removed from the convicted offense.

Id. at 579–80 (citing Estelle v. Williams, 425 U.S. 501, 512 (1976)).

We see no meaningful distinction between the actions of counsel in Jones responding to the trial court that his client was waiving his right to have the jury instructed on a category one lesser included offense and Lathan’s counsel, after having heard the State ask for a category one lesser included instruction of attempted second-degree murder with a firearm, thereafter affirmatively advising the court that he would not be seeking any other lesser included instructions on behalf of his client and then, on two subsequent occasions, confirming to the court that the jury instructions to be given were acceptable and there were no objections to them. We have no reason to believe that trial counsel was unaware of the remaining available category one lesser included instructions for attempted first-degree murder, nor has Lathan suggested that his trial counsel acted outside the scope of his authority when advising the court that Lathan did not seek any further lesser included offense instructions. Moreover, there appears to be nothing in either the Walton or Roberts decisions that suggests to us that a defendant cannot knowingly waive his or her right to have the jury instructed on any or all available category one lesser included offenses to a given charge.

Fundamental error in the context of jury instructions has been defined by our supreme court as an error that “must reach down into the validity of the trial itself to the extent that a verdict of guilty could not have been obtained without the assistance of the alleged error” and “occurs only when the omission is pertinent or material to what the jury must consider in order to convict.” Roberts, 242 So. 3d at 298. Here, the jury was properly instructed on the convicted charge of attempted second-degree murder with a

STILL WAIVE CATEGORY ONE LESSER INCLUDED

OFFENSE JURY INSTRUCTIONS UNDER JONES v. STATE, 484 SO. 2D 577 (FLA. 1986)?

2. IF SO, MUST DEFENSE COUNSEL ANNOUNCE AN

EXPRESS WAIVER ON THE RECORD OF THE

CATEGORY ONE INSTRUCTION, OR IS COUNSEL’S AFFIRMATIVE DECLINATION TO THE TRIAL COURT’S

INQUIRY OF WHETHER ANY LESSER INCLUDED

OFFENSE INSTRUCTIONS ARE BEING REQUESTED

SUFFICIENT TO WAIVE THE GIVING OF CATEGORY

ONE LESSER INCLUDED OFFENSE INSTRUCTIONS?

5 See Dean v. State, 230 So. 3d 420, 424–26 (Fla. 2017) (approving the result of the district court’s decision to affirm the defendant’s convictions for the reasons expressed in Justice Polston’s concurring opinion that “where the evidence supports the charged offense of [second-degree felony murder] as well as the requested instruction on a necessarily lesser included offense [of manslaughter], any error in failing to give the requested instruction is harmless because the defendant is not entitled to an opportunity for a jury pardon”).

12

3. WHEN THE EVIDENCE AT TRIAL READILY SUPPORTS

THE JURY’S VERDICT OF GUILT FOR ATTEMPTED

SECOND-DEGREE MURDER WITH A FIREARM AND

NO ERROR WAS MADE IN THE INSTRUCTIONS

REGARDING THAT OFFENSE, IS THE TRIAL COURT’S

DECISION

NOT

TO

GIVE

THE

ATTEMPTED

MANSLAUGHTER

BY

ACT

LESSER

INCLUDED

OFFENSE INSTRUCTION FUNDAMENTAL ERROR

WHEN

DEFENSE

COUNSEL

AFFIRMATIVELY

RESPONDS TO THE TRIAL COURT THAT COUNSEL IS

REQUESTING NO LESSER INCLUDED OFFENSE

INSTRUCTIONS?

4. DID THE COURT’S DECISION IN DEAN v. STATE, 230 SO. 3D 420 (FLA. 2017), ABROGATE THE JURY

PARDON DOCTRINE OR, AT THE VERY LEAST, DOES

IT NOW REQUIRE THE APPLICATION OF THE

HARMLESS ERROR ANALYSIS WHEN A CATEGORY

ONE

LESSER

INCLUDED

OFFENSE

JURY

INSTRUCTION, ONE STEP REMOVED FROM THE

CONVICTED OFFENSE, IS NOT GIVEN?

PETITION DENIED; QUESTIONS CERTIFIED. EDWARDS, J., concurs. EISNAUGLE, J., concurs specially, with opinion.

I concur in the certified questions and agree with the majority that the petition should be denied. Lathan was asked, through counsel, if he wanted instructions for any additional lesser included offenses read to the jury, and he declined. In my view, requiring magic words to effect a waiver of this right would unnecessarily put form over substance. I also reluctantly concur that, were it not for Lathan’s waiver, we would be required to grant the petition based upon our supreme court’s opinions in Roberts v. State, 242 So. 3d 296 (Fla. 2018); Walton v. State, 208 So. 3d 60 (Fla. 2016); and State v. Montgomery, 39 So. 3d 252 (Fla. 2010). This line of cases is built upon the premise that “[a] jury must be given a fair opportunity to exercise its inherent ‘pardon’ power by returning a verdict of guilty as to the next lower crime.” Pena v. State, 901 So. 2d 781, 787 (Fla. 2005). However, were I writing on a clean slate, I would conclude that “[n]o defendant has the right to a trial in which the judge facilitates the jury’s acting in disregard of the law, which is what the [Roberts] decision (and the jury pardon doctrine upon which it is based) promotes.” Roberts, 242 So. 3d at 300 (Polston, J., dissenting) (internal quotation marks and citation omitted).