76 So. 3d 1056
Fla. Dist. Ct. App.2011Background
- Smith was convicted of organized fraud under Fla. Stat. § 817.034(4)(a)1. and/or co-defendant O'Keefe.
- The trial court gave an 'and/or' jury instruction between the co-defendants for the elements of the crime after Smith requested it.
- Closing arguments emphasized separate consideration of each defendant and the principals instruction; separate verdict forms were used for each defendant.
- Smith argued the 'and/or' instruction negated his defense by allowing proof against O'Keefe to satisfy Smith's elements.
- The court questioned the instruction's correctness; the defense urged 'and/or' while O'Keefe objected; the court adopted 'and/or'.
- Smith appealed alleging fundamental error in the 'and/or' instruction; the defense had requested the instruction, impacting preservation.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was the use of the and/or instruction fundamental error? | Smith; the instruction could mislead about joint liability. | Smith; the wording undermined his defense of lack of intent. | No fundamental error. |
| Was the error preserved or waived by Smith's request? | Smith; error preserved by requested instruction. | Smith; the request defeated fundamental-error review. | Waived; no fundamental error on the merits. |
Key Cases Cited
- Garzon v. State, 980 So.2d 1038 (Fla. 2008) (and/or reviewed under totality to avoid fundamental error)
- Garzon v. State, 939 So.2d 278 (Fla. 4th DCA 2006) (totality-of-record approach to and/or error)
- O'Keefe v. State, 47 So.3d 937 (Fla. 4th DCA 2010) (trial context cited regarding organization and evidence)
- Ray v. State, 403 So.2d 956 (Fla. 1981) (court held erroneous instruction not fundamental if party requested)
- Fulcher v. State, 766 So.2d 243 (Fla. 4th DCA 2000) (absence of preservation when error is claimed by defendant)
- Weber v. State, 602 So.2d 1316 (Fla. 5th DCA 1992) (preservation principle when defendant requests the instruction)
- Rimmer v. State, 59 So.3d 763 (Fla. 2010) (and/or not fundamental error under similar circumstances)
- Hunter v. State, 8 So.3d 1052 (Fla. 2008) (and/or used without fundamental error in multi-defendant trials)
- Lewis v. State, 22 So.3d 753 (Fla. 4th DCA 2009) (and/or not fundamental error where defenses emphasized)
- Brown v. State, 35 So.3d 148 (Fla. 3d DCA 2010) (similar analysis of and/or in jury instructions)
- Nicholson v. State, 33 So.3d 107 (Fla. 1st DCA 2010) (and/or context in multiple-defendant cases)
- Barrientos v. State, 1 So.3d 1209 (Fla. 2d DCA 2009) (and/or usage in co-defendant instructions)
- Green v. State, 996 So.2d 911 (Fla. 1st DCA 2008) (fundamental instruction review standards for and/or)