Opinion

Moore v. State

  • 114 So. 3d 486
  • 2013 Fla. App. LEXIS 9244
  • 2013 WL 2462113
Court
District Court of Appeal of Florida
Filed
Jun 10, 2013
Status
Published
Author
Benton
On the bench
Benton, Swanson, Wolf
Cited by
14 cases

stating that the “trial court specifically brought to counsel’s attention the problem of the intent language in the proposed jury instruction and offered to strike that language”

How later courts described this case

  • stating that the “trial court specifically brought to counsel’s attention the problem of the intent language in the proposed jury instruction and offered to strike that language”
  • holding that counsel’s mere failure to object to an erroneous jury instruction is insufficient by itself to waive a claim of fundamental error based upon the instruction
  • finding no waiver of fundamental error where there was not “any indication that counsel was alerted to the fact the instruction was incomplete”
  • "This court has held that knowledge of the error is necessary to waive fundamental error."

Written by the judges who cited it.

The opinion

BENTON, C.J.,

concurring in part and dissenting in part.

I concur in certifying both questions, but respectfully dissent from today’s decision insofar as it reverses appellant’s conviction for second-degree murder.

As the majority opinion explains, the defense at trial was alibi. There was no contention that, or any issue as to whether, the perpetrator who, in the course of a home invasion robbery, bound “the victim’s hands ... and ... killed [him] by blunt force trauma to the head and neck,” ante p. 3, acted justifiably or with legal excuse. He did not. As the majority opinion also explains, defense “counsel and the court discussed the ... manslaughter instruction at length, and appellant's counsel] repeatedly stated he agreed with the version that was read to the jury.” Ante p. 14. In the circumstances, I would affirm the murder conviction.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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