Fenster v. State
2011 Fla. App. LEXIS 7204
| Fla. Dist. Ct. App. | 2011Background
- Defendant convicted of attempted second degree murder; appeals conviction and sentence.
- Defendant challenges denial of judgment of acquittal, the standard jury instruction for attempted second degree murder, the lesser-included offense instruction for attempted manslaughter, prosecutorial comments, and jail credit.
- Court rejects first four arguments and agrees with the jail-credit issue; address only the third, fourth, and fifth arguments.
- Jury was instructed on the lesser included offense of attempted manslaughter with language requiring an act intended to cause death that would have resulted in death if not prevented.
- Court certifies two questions of great public importance regarding fundamental error and the viability of attempted manslaughter post-Montgomery, and notes conflict with Lamb; prosecutor comments deemed harmless beyond a reasonable doubt; remands for correcting time-served credit totaling 1,373 days.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Fundamental error from attempted manslaughter instruction | Defendant argues instruction requires intent to kill | State concedes no fundamental error; Williams controls | No fundamental error; Williams controls |
| Viability of attempted manslaughter after Montgomery | Offense viability challenged by Montgomery and related precedents | Court should address viability and certify questions | Questions certified as of great public importance; conflict with Lamb |
| Harmlessness of prosecutor's closing comments | Unpreserved comments could affect verdict | Unpreserved errors may be reversible | Harmless beyond a reasonable doubt; no fundamental error; cumulative impact not reversible |
| Jail credit on time served | Trial court inadequately credited time served | Full time served should be credited | Remand to credit 1,373 days time served |
Key Cases Cited
- Williams v. State, 40 So.3d 72 (Fla. 4th DCA 2010) (upholds no fundamental error for attempted manslaughter instruction)
- Lamb v. State, 18 So.3d 734 (Fla. 1st DCA 2009) (conflicting precedent on related issue)
- Martinez v. State, 761 So.2d 1074 (Fla. 2000) (preserved and unpreserved error reviewed for harmless error)
- Ventura v. State, 29 So.3d 1086 (Fla. 2010) (harmless error standard guidance )
- DiGuilio, 491 So.2d 1129 (Fla. 1986) (harmless error standard)
- Fenster v. State, 944 So.2d 477 (Fla. 4th DCA 2006) (prosecutorial remarks outcome in first trial; later review considered harmless)
- Montgomery, 39 So.3d 252 (Fla. 2010) (relevant to viability of attempted manslaughter)
- DiGuilio, 491 So.2d 1129 (Fla. 1986) (harmless beyond a reasonable doubt framework)