# Moore v. State

> District Court of Appeal of Florida · June 10, 2013 · 114 So. 3d 486

URL: https://www.frixlaw.com/law-library/cases/4801790

## Case

- **Full name:** Jimmy MOORE, Jr. v. STATE of Florida
- **Court:** District Court of Appeal of Florida
- **Decided:** June 10, 2013
- **Citations:** 114 So. 3d 486; 2013 Fla. App. LEXIS 9244; 2013 WL 2462113
- **Precedential status:** Published
- **Opinion:** Concurring in part by Benton
- **Judges:** Benton, Swanson, Wolf
- **Cited by:** 14 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/4801790

## How later opinions describe it (automated extraction)

- 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”

## Opinion text

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4801790. Public record. Not legal advice.