YUSUF MELENDEZ

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

YUSUF MELENDEZ,

Appellant,

v. Case No. 5D19-1624

STATE OF FLORIDA,

Appellee.

________________________________/

Opinion filed May 29, 2020

Appeal from the Circuit Court for Marion County, David B. Eddy, Judge.

James

S.

Purdy, Public Defender, and Joseph Chloupek, Assistant Public Defender, Daytona Beach, for Appellant.

Ashley Moody, Attorney General, Tallahassee, and Pamela J. Koller, Assistant Attorney General, Daytona Beach, for Appellee.

SASSO, J.

Yusuf Melendez (“Appellant”) appeals the judgment and sentence entered after a jury found him guilty of second-degree murder with a firearm. We affirm in all respects but write to address Appellant’s argument that the trial court fundamentally erred when it omitted the jury instructions for excusable and justifiable homicide. Appellant primarily relies on State v. Spencer, 216 So. 3d 481 (Fla. 2017). Because Florida no longer recognizes the right to access a partial jury nullification, a right upon which Spencer is predicated, Appellant has failed to demonstrate fundamental error. The State charged Appellant with one count of second-degree murder with a firearm for allegedly murdering his girlfriend. At trial, the State’s theory was that Appellant shot his girlfriend following an argument. The defense acknowledged that the shooting had occurred and that Appellant was present when it happened. However, the defense asserted that a third person was also present, and this person, not Appellant, committed the crime. The jury was instructed on second-degree murder and the category one lesser included offense of manslaughter. After multiple charge conferences and with no objection, the instructions were presented to the jury without the introduction to homicide standard jury instruction, which includes definitions for excusable and justifiable homicide.¹ The jury returned a verdict of guilty as charged. Appellant argues that the trial court fundamentally erred in failing to instruct the jury on the definitions of excusable and justifiable homicide. Our review is de novo. See Walton v. State, 208 So. 3d 60, 64 (Fla. 2016). In Spencer, the Florida Supreme Court reaffirmed the rule upon which Appellant bases his argument: “the failure to instruct on justifiable or excusable homicide as part of the jury instruction on manslaughter constitutes fundamental error where the conviction is for manslaughter or a greater offense not more than one step removed, regardless of whether the evidence could support either.” 216 So. 3d at 486. In so holding, the Spencer court relied on State v. Lucas, 645 So. 2d 425 (Fla. 1994), a case premised on Florida’s jury pardon doctrine.² Id. at 489 (Canady, J., dissenting). However, Florida no longer recognizes the jury pardon doctrine. Knight v. State, 286 So. 3d 147, 151, 153-54 (Fla. 2019) (“[W]e now reconsider the jury pardon doctrine and more closely align ourselves with the majority of jurisdictions that do not recognize what is most accurately described as a fundamental right to instructions that facilitate partial jury nullification.”). Moreover, in Knight, the Florida Supreme Court specifically receded from its precedents “where a finding of fundamental error was predicated on Florida’s jury pardon doctrine.” Id. at 154. Spencer falls into this category of cases. In light of the Florida Supreme Court’s decision in Knight, the fundamental error rule reaffirmed by Spencer has been rendered obsolete. As such, Appellant must demonstrate the error here “‘necessarily and inescapably produced the ultimate jury verdict’ and that the error ‘permeate[d] or saturate[d] the trial’ with ‘basic invalidity.’” Knight, 286 So. 3d at 151 (citing Brown v. State, 124 So. 2d 481 (Fla. 1960)). Appellant has not done so. While Appellant complains of the error in omitting the definitions of justifiable and excusable homicide, the defense never argued the homicide was excusable or justifiable, or committed in the heat of passion. And in Appellant’s presentation of the evidence, he never admitted or acknowledged shooting his girlfriend at all, consistently pointing to a third person. Furthermore, there was strong circumstantial evidence to support a conviction of second-degree murder. Finally, there was no error regarding the instruction on the offense of conviction, second-degree murder. As a result, the omission here does not rise to the level of fundamental error. Accord State v. Delva, 575 So. 2d 643, 645 (Fla. 1991) (“Failing to instruct on an element of the crime over which the record reflects there was no dispute is not fundamental error and there must be an objection to preserve the issue for appeal.”) (citations omitted). Accordingly, we affirm.

AFFIRMED.

COHEN and TRAVER, JJ., concur.