Delvalle v. StateDelvalle v. State
Delvalle was convicted as charged of two counts of attempted first degree murder with a firearm as the result of the shooting and wounding of two men in the front yard of a
The troublesome issue on appeal concerns an incorrect verdict form submitted to the jury for each count. That form provided that the next lesser offense to the charged offense was “first degree murder without a firearm” when it was intended to be ”attempted first degree murder without a firearm.”1
Delvalle now contends that he is entitled to a new trial because the typographical omission, which escaped notice by trial counsel and the trial judge prior to the jury verdict, deprived him of the possibility of a jury pardon in the form of a conviction of the “next immediate lesser included offense, one step removed from the offense charged.” The lesser conviction would also have removed the three year mandatory minimum sentence. He contends that this constitutes per se reversible error per State v. Abreau, 363 So.2d 1063 (Fla. 1978).
It should be noted that the defense at trial concerned identity. It was not disputed that a firearm was utilized in the offenses. We also observe that some seven lesser included offenses, commencing with attempted second degree murder with a firearm, were included on each verdict form.
In Abreau it was held to be reversible error per se for a trial judge to fail to instruct on the next immediate lesser included offense (one step removed). In the instant case, the trial judge properly instructed on the next immediate lesser included offense; the problem was the typographical omission in respect to that offense in the verdict forms. In this case, as in Capehart v. State, 583 So.2d 1009 (Fla. 1991), cert. denied, 502 U.S. 1065, 112 S.Ct. 955, 117 L.Ed.2d 122 (1992), the defendant failed to preserve any objection to the verdict forms by timely objection at trial. In fact, defense counsel specifically expressed satisfaction with the verdict forms on two separate occasions prior to their submission to the jury. The error, therefore, was an invited one. See Perry v. State, 362 So.2d 460 (Fla. 1st DCA 1978). Given the evidence adduced at trial, the error also was harmless, since it is inconceivable that any rational jury could have returned a verdict finding that there was no firearm involved in the commission of the charged offenses. See State v. DiGuilio, 491 So.2d 1129 (Fla. 1986).
At a more fundamental level, however, we note that the trial court and trial counsel seem to have misapprehended the fact that the next lesser included offense of the crime of attempted first degree murder (with or without a firearm) is attempted second degree murder — and that option was provided to and rejected by the jury in this case. Whether or not the aggravating factor of a firearm was present is an issue separate and
AFFIRMED.
W. SHARP and GOSHORN, JJ., concur.
Notes
VERDICT ___ X ___ WE, THE JURY, find the Defendant guilty of Attempted First Degree Murder with a Firearm, as charged in the Information. ______ WE, THE JURY, find the Defendant guilty of the lesser included offense of First Degree Murder Without a Firearm. ______ WE, THE JURY, find the Defendant guilty of the lesser included offense of Attempted Second Degree Murder with a Firearm. ______ WE, THE JURY, find the Defendant guilty of the lesser included offense of Attempted Second Degree Murder Without a Firearm. ______ WE, THE JURY, find the Defendant guilty of the lesser included offense of Attempted Manslaughter With a Firearm. ______ WE, THE JURY, find the Defendant guilty of the lesser included offense of Attempted Manslaughter Without a Firearm. ______ WE, THE JURY, find the Defendant guilty of the lesser included offense of Aggravated Battery with a Firearm. ______ WE, THE JURY, find the Defendant guilty of the lesser included offense of Aggravated Battery Without a Firearm. ______ WE, THE JURY, find the Defendant guilty of the lesser included offense of Battery. ______ WE, THE JURY, find the Defendant not guilty.