Burns v. State, 170 So. 3d 90

Burns and Canada collected scrap and returned to Canada’s home; Canada placed truck keys on a desk inside the house.
Canada testified Burns asked to use the computer, they went outside, Canada went to his shop, heard the truck chirp, and found a briefcase ransacked and money missing.
Canada saw Burns inside the house between him and the door, threatened to call police, Burns said “I’m going to kill you” and attacked; Canada deployed a Taser; Burns fled and was later arrested driving Canada’s truck after a crash.
Burns was convicted of carjacking (§812.133) and attempted voluntary manslaughter, among other charges; he did not object to the carjacking jury instruction at trial.
The jury was given the pre-2013 standard instruction defining “in the course of the taking” as occurring before, during, or after the taking if part of a continuous series of acts, but was not instructed on the “afterthought” exception (that a taking as an afterthought to unrelated force does not constitute carjacking).
The court affirmed convictions, holding the erroneous instruction was not fundamental error because the afterthought theory was not clearly put in issue at trial; ineffective-assistance claims must be pursued collaterally.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether failure to give an "afterthought" instruction for carjacking is fundamental error when not objected to at trial	Burns: instruction was erroneous and deprived him of a fair trial; the jury should have been told that a taking as an afterthought to unrelated force is not carjacking	State: standard instruction was proper; defense never put the afterthought theory before the jury, so the omission was not fundamental	Court: No fundamental error — the afterthought issue was not genuinely at issue before the jury, so unpreserved error does not require reversal
Whether defense counsel was ineffective for not requesting the correct carjacking instruction	Burns: counsel’s failure is apparent on the record and prejudicial	State: record does not show obvious ineffectiveness; tactical reasons possible; claim premature on direct appeal	Court: Cannot resolve on direct appeal; ineffective-assistance claim must be raised in collateral proceedings
Whether failure to instruct on simple battery as a lesser-included offense of attempted manslaughter was fundamental without a request	Burns: trial court erred by not giving simple battery instruction	State: defense did not request category‑2 lesser; failure to request waives review	Court: No fundamental error — defendant did not request that lesser and thus did not preserve the issue

Young v. State, 141 So.3d 161 (Fla. 2013) (holding fear used to take keys prior to driving can be "in the course of the taking")
DeJesus v. State, 98 So.3d 105 (Fla. 2d DCA 2012) (identified standard instruction’s failure to account for the afterthought exception)
Beasley v. State, 774 So.2d 649 (Fla. 2000) (when force was motivated by reasons other than obtaining property, robbery/robbery aggravator not proven)
Mahn v. State, 714 So.2d 391 (Fla. 1998) (robbery not established where homicide motive was not to obtain vehicle but to flee)
Daniels v. State, 121 So.3d 409 (Fla. 2013) (unpreserved jury-instruction errors reviewed de novo for fundamental error when an element in dispute)
Reed v. State, 837 So.2d 366 (Fla. 2002) (erroneous instruction is fundamental only if it concerns an element genuinely disputed at trial)
Armstrong v. State, 579 So.2d 734 (Fla. 1991) (defense counsel who affirmatively requests an instruction waives later challenge to it)
Baptiste-Jean v. State, 979 So.2d 1091 (Fla. 3d DCA 2008) (taking keys by force prior to driving can be part of a continuous series constituting carjacking)