683 So. 2d 162 | Fla. Dist. Ct. App. | 1996
Francisco Rodriguez appeals from a final judgment convicting him of attempted first degree murder using a knife, and aggravated battery with a deadly weapon. The charges resulted from a fight outside a bar during which Rodriguez stabbed the victims. Rodriguez raises four separate points on appeal, one of which warrants reversal.
We reverse because the instructions on reasonable doubt given by the trial court prior to empaneling the jury were identical to those that this court found to be fundamental error in Pierce v. State, 671 So.2d 186 (Fla. 4th DCA), rev. granted, 677 So.2d 841 (Fla.1996), Wilson v. State, 668 So.2d 998 (Fla. 4th DCA 1995), rev. granted, 672 So.2d 543 (Fla.1996), and Jones v. State, 656 So.2d 489 (Fla. 4th DCA), rev. denied, 663 So.2d 632 (Fla.1995), cert. denied, — U.S. — , 116 S.Ct. 1451, 134 L.Ed.2d 570 (1996). At bar, as in the above cited cases, instructing the jury that the state does not have to convince the jury to an absolute certainty of the defendant’s guilt violated the defendant’s due process rights as it is a minimization of the reasonable doubt standard that deprived the defendant of his defense. In so holding, we note conflict with the third district’s opinion in Doctor v. State, 677 So.2d 1372 (Fla. 3d DCA 1996). We also certify as issues of great public importance the same two questions certified in Wilson, which are as follows:
DOES THE JURY INSTRUCTION GIVEN IN THIS CASE
IF SO, IS SUCH AN INSTRUCTION FUNDAMENTAL ERROR?
In a separate point on appeal, Rodriguez argues that it was error to allow the
We are unpersuaded by Rodriguez’s remaining two points on appeal.
REVERSED AND REMANDED FOR NEW TRIAL.
. The offending portion of the jury instruction at bar is identical to the instruction given in Wilson.