VERNE ECEDRO GOMEZ
v.
STATE OF FLORIDA
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A trial court commits no fundamental error by failing to instruct the jury on justifiable and excusable attempted homicide when defense counsel affirmatively agrees to the omission.
[1] When defense counsel affirmatively agrees to or requests an incomplete jury instruction on attempted homicide that omits justifiable and excusable homicide definitions, t…
Previewing 1 of 1 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“reiterate[d] that the Lucas/Armstrong exception to the fundamental error rule continues to apply in situations where defense counsel affirmatively agreed to or requested an incomplete [introduction to attempted homicide] instruction.”
Court's discussion of Spencer precedent regarding the exception to fundamental error analysis
Gomez was convicted of attempted second-degree murder. During the jury instruction conference, the prosecutor announced she had removed justifiable an…
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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
VERNE ECEDRO GOMEZ,
Appellant,
v. Case No. 5D18-2903
STATE OF FLORIDA,
Appellee.
________________________________/
Opinion filed June 28, 2019
Appeal from the Circuit Court for Osceola County, Elaine A. Barbour, Judge.
James S. Purdy, Public Defender, and Thomas J. Lukashow, Assistant Public Defender, Daytona Beach, for Appellant.
Ashley Moody, Attorney General, Tallahassee, and Andrea
K.
Totten, Assistant Attorney General, Daytona Beach, for Appellee.
LAMBERT, J.
Verne Ecedro Gomez appeals his judgment and sentence for attempted seconddegree murder. The sole argument that he raises here is that the trial court committed fundamental error by failing to instruct the jury on justifiable attempted homicide and excusable attempted homicide as contained in Florida Standard Jury Instruction
2 (Criminal) 6.1 (2017). Because Gomez’s trial counsel affirmatively agreed to the instruction being read to the jury without the definitions of justifiable attempted homicide and excusable attempted homicide, we affirm.
A trial court’s failure to instruct the jury on either justifiable or excusable attempted homicide is fundamental error when a defendant is convicted of attempted manslaughter or a greater offense not more than one step removed. State v. Spencer, 216 So. 3d 481, 483 (Fla. 2017). However, there are two exceptions to the application of the one-stepremoved fundamental error analysis regarding the trial court’s failure to instruct the jury on justifiable or excusable attempted homicide. Id. at 485–86. The first exception, recognized in State v. Lucas, 645 So. 2d 425 (Fla. 1994), and Armstrong v. State, 579 So. 2d 734 (Fla. 1991), provides that there is no fundamental error where defense counsel affirmatively agreed to or requested an incomplete instruction, and it is directly applicable here.
During the jury instruction charge conference in Gomez’s trial, the prosecutor specifically announced that based upon her earlier discussions with defense counsel, she had removed the justifiable and excusable attempted homicide language from the proposed introduction to attempted homicide jury instruction. The prosecutor further explained that the applicable case law also required the defense to make an express affirmative representation of its intent not to seek these instructions. In response, Gomez’s trial counsel affirmatively agreed on the record and to the court that she was not seeking this instruction.
In Spencer, the court “reiterate[d] that the Lucas/Armstrong exception to the fundamental error rule continues to apply in situations where defense counsel
AFFIRMED.
EVANDER, C.J., and EDWARDS, J., concur.
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Citator
Cited By
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Brady v. State (Fla. 2d DCA 2019)
Authorities Cited
- Armstrong v. State, 579 So. 2d 734 (Fla. 1991)
- State v. Lucas, 645 So. 2d 425 (Fla. 1994)
- State v. Damani Spencer, 216 So. 3d 481 (Fla. 2017)