149 So. 3d 54
Fla. Dist. Ct. App.2014Background
- Silver was convicted of three counts of attempted second-degree murder and two misdemeanors after a June 1, 2007 pizza restaurant robbery.
- The robbery involved two masked gunmen; the owner identified Silver as the gunman who spoke to him as “Papa.”
- After law enforcement arrived, Silver confessed following Miranda warnings, but at trial gave a different account denying involvement beyond being there to pick up a paycheck.
- Initial jury instructions referenced various offenses and included a mention of attempted voluntary manslaughter but contained typos; the court adjourned to correct them.
- When corrected instructions were presented, the attempted voluntary manslaughter instruction was omitted; defense counsel agreed to the revised instructions and did not object.
- Silver appealed, raising four issues, but the court addressed only the incomplete jury instruction, ultimately holding no reversible error and that any error was waived.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the failure to instruct on attempted manslaughter as a lesser offense was fundamental error | Silver argues omission was fundamental error | State contends defense waived by agreement to omit | Omission waived; not fundamental error |
Key Cases Cited
- Jones v. State, 484 So. 2d 577 (Fla. 1986) (no personal waiver required to guarantee fundamental fairness in non-capital cases)
- Armstrong v. State, 579 So. 2d 734 (Fla. 1991) (affirmative request of imperfect instruction waives error)
- Ray v. State, 403 So. 2d 956 (Fla. 1981) (basis for waiver and error preservation principles)
- Nesbitt v. State, 889 So. 2d 801 (Fla. 2004) (affirms strategic waiver concepts in jury instruction context)
- Cosme v. State, 89 So. 3d 1096 (Fla. 4th DCA 2012) (no fundamental error where no timely request for lesser offense)
- Firsher v. State, 834 So. 2d 921 (Fla. 3d DCA 2003) (not fundamental error when defense counsel requests altered instruction)
- Williams v. State, 123 So. 3d 23 (Fla. 2013) (distinguishes attempted manslaughter instruction from dispositive issues)
- Montgomery v. State, 39 So. 3d 252 (Fla. 2010) (discussion of attempted manslaughter instruction standards)
- Haygood v. State, 109 So. 3d 735 (Fla. 2013) (addressed instructional elements for attempted manslaughter)
- Abreau v. State, 363 So. 2d 1063 (Fla. 1978) (next immediate lesser-included offense relevance)
- State v. Lucas, 645 So. 2d 425 (Fla. 1994) (exception to fundamental error where defense counsels’ actions show waiver)