               NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
                      MOTION AND, IF FILED, DETERMINED

                                             IN THE DISTRICT COURT OF APPEAL
                                             OF FLORIDA
                                             SECOND DISTRICT

JAMES MICHAEL BRADY,                         )
                                             )
             Appellant,                      )
                                             )
v.                                           )         Case No. 2D18-117
                                             )
STATE OF FLORIDA,                            )
                                             )
             Appellee.                       )
                                             )

Opinion filed November 22, 2019.

Appeal from the Circuit Court for Polk
County; William D. Sites, Judge.

Howard L. Dimmig, II, Public Defender, and
Tosha Cohen, Assistant Public Defender,
Bartow, for Appellant.

Ashley Moody, Attorney General,
Tallahassee, and Michael Schaub,
Assistant Attorney General, Tampa, for
Appellee.


LaROSE, Judge.


             James Michael Brady challenges his judgment and sentences for

(1) domestic battery, (2) shooting into a building, (3) attempted second-degree murder

with a firearm, and (4) tampering with a witness. See §§ 775.087, 777.04, 782.04(2),

784.03, 790.19, 914.22, Fla. Stat. (2015). We have jurisdiction. See Fla. R. App. P.

9.030(b)(1)(A). Because the issues before us warrant no relief, we affirm in all respects.
We write, however, to address Mr. Brady's concern with an incomplete jury instruction

for excusable homicide.

                          I.     A Brief Factual Background

              The charges arise from an incident in September 2015. Mr. Brady went to

his nephew's house to watch football on the television. They grilled food and drank

bourbon. When Mr. Brady's wife, Sherry Wiker, arrived, the couple argued about

whether Mr. Brady should drive home drunk. Ms. Wiker went home alone. Later, Mr.

Brady's niece drove him home. Mr. Brady went into a bedroom and retrieved his

shotgun. The shotgun discharged, spewing pellets through the bedroom door and into

Ms. Wiker's arm.

              At trial, Mr. Brady argued that the shooting was an accident, his failed

attempt at suicide. The State argued that Mr. Brady intentionally attempted to kill his

wife. The jury convicted Mr. Brady of the lesser included offense of battery for count

one and as charged for the remaining three counts. The trial court sentenced Mr. Brady

to time served on count one, and concurrent terms of fifteen years in prison on count

two and life in prison on counts three and four.

             II.    Incomplete Jury Instruction for Excusable Homicide

              Mr. Brady argues that "[t]he trial court committed fundamental error in

failing to include a jury instruction on excusable homicide." He contends that the

evidence demonstrated that the offense was committed "in the heat of passion" while

Mr. Brady tried to kill himself. The State sees no error because, in its view, Mr. Brady

conceded that the attempted murder was neither justifiable nor excusable.

              Section 782.03, Florida Statutes (2015), defines excusable homicide as

follows:
                                           -2-
              Homicide is excusable when committed by accident and
              misfortune in doing any lawful act by lawful means with usual
              ordinary caution, and without any unlawful intent, or by
              accident and misfortune in the heat of passion, upon any
              sudden and sufficient provocation, or upon a sudden
              combat, without any dangerous weapon being used and not
              done in a cruel or unusual manner.1

The State maintains that none of the three circumstances constituting excusable

homicide existed because "[s]uicide is not a lawful act, heat of passion caused by

provocation, or sudden combat."

              In attempted murder cases, the trial court must instruct the jury as to the

definitions of justifiable and excusable homicide. Sams v. State, 44 Fla. L. Weekly

D967, D967 (Fla. 2d DCA Apr. 12, 2019); Van Loan v. State, 736 So. 2d 803, 804 (Fla.

2d DCA 1999) ("A trial court must read the definitions of excusable and justifiable

homicide in all murder and manslaughter cases.").

              Typically, and absent a contemporaneous objection, failure to give these

instructions is fundamental error where the defendant was convicted of attempted

manslaughter or a greater offense not more than one step removed, "regardless of

whether the evidence could support either [justifiable or excusable homicide]." State v.

Spencer, 216 So. 3d 481, 486 (Fla. 2017); see also Pena v. State, 901 So. 2d 781, 787

(Fla. 2005) ("If the jury is not properly instructed on the next lower crime, then it is

impossible to determine whether, having been properly instructed, it would have found

the defendant guilty of the next lesser offense. However, when the trial court fails to


              1Cf.,e.g., Nicholson ex rel. Gollott v. State, 672 So. 2d 744, 753 (Miss.
1996) (holding excusable homicide instruction inapplicable to fatal shooting which
allegedly occurred during unlawful attempt to commit suicide); People v. Chrisholtz, 285
N.Y.S.2d 231, 236 (N.Y. Sup. Ct. 1967) (holding homicide was not excusable by virtue
of an accident or misfortune because suicide and discharging a firearm were unlawful
acts).
                                            -3-
properly instruct on a crime two or more degrees removed from the crime for which the

defendant is convicted, the error is not per se reversible, but instead is subject to a

harmless error analysis.").

              In these circumstances, the Florida Supreme Court has carved out two

situations where the defendant cannot successfully assert fundamental error: (1) "where

defense counsel affirmatively agreed to or requested an incomplete instruction," or

(2) "where the defendant expressly conceded that the homicide or attempted homicide

was not justified or excusable."2 Spencer, 216 So. 3d at 486, 488; see, e.g., Gomez v.

State, 274 So. 3d 1237, 1238 (Fla. 5th DCA 2019) (holding that the first situation

applied where defense counsel "affirmatively agreed on the record and to the court that

she was not seeking [the justifiable and excusable attempted homicide] instruction").

              The second situation does not apply here. Contrary to the State's

assertion, Mr. Brady never conceded that the attempted homicide was not excusable.

See Spencer, 216 So. 3d at 487-88 (stating that "Spencer did not expressly concede

that the attempted homicides were neither justified nor excusable" where defense

counsel did not mention "the presence or absence of excusable or justifiable attempted

homicide" during closing statements and "contended that the State had failed to sustain

its burden of proof"). He always maintained that the shooting was an accident.




              2The second situation embodies the principle that fundamental error
occurs where the trial court fails to instruct the jury on a material element in dispute.
See Spencer, 216 So. 3d at 487 (deriving the second situation from the principle "that a
defendant may concede an element of a crime such that it is no longer in dispute for
purposes of a fundamental error analysis").
                                              -4-
Accordingly, we look only at whether defense counsel agreed to the erroneous and

incomplete instruction.3

              Defense counsel's failure to object to the omission of an instruction is not

equivalent to an affirmative waiver of the complete instructions. Fletcher v. State, 828

So. 2d 460, 462 (Fla. 5th DCA 2002) (citing Ortiz v. State, 682 So. 2d 217 (Fla. 5th DCA

1996)). Similarly, defense counsel's acquiescence to an incomplete instruction is not an

affirmative waiver. Sams, 44 Fla. L. Weekly at D967; see also McNeal v. State, 662 So.

2d 373, 374 (Fla. 5th DCA 1995) ("Although defense counsel repeatedly expressed

satisfaction with the proposed instruction that was given by the court, failure to give the

correct instruction is fundamental error.").

              An affirmative waiver requires counsel to know of the omission before

agreeing to the incomplete instruction. Van Loan, 736 So. 2d at 804 ("Before this

exception applies, defense counsel must be aware of the omission, alteration, or

incomplete instruction and affirmatively agree to it."); see also Pignataro v. State, 834

So. 2d 965, 966 (Fla. 2d DCA 2003) ("Here, as in Van Loan, the record contains no

indication that trial counsel had prior knowledge of the omission and agreed to it.");

Moore v. State, 114 So. 3d 486, 490-91 (Fla. 1st DCA 2013) ("This court has held that

knowledge of the error is necessary to waive fundamental error."). But see Calloway v.

State, 37 So. 3d 891, 896 (Fla. 1st DCA 2010) (discussing acquiescence to incorrect


              3The   record does not show that Mr. Brady requested the incomplete
instruction. See Armstrong v. State, 579 So. 2d 734, 734-35 (Fla. 1991) (holding that
no fundamental error occurred where defense counsel requested the trial court give a
limited instruction on the definition of excusable homicide and omit the portions of the
definition not relevant to the case); Sams, 44 Fla. L. Weekly at D967 (ruling that
defense counsel's active involvement "in shaping the content of the instructions" was
not "the equivalent of requesting that the court give incomplete instructions—at least not
in the sense the supreme court has employed that exception").
                                             -5-
jury instructions without mentioning the knowledge component). Further, a waiver

depends on the totality of circumstances. Knight v. State, 267 So. 3d 38, 46 (Fla. 1st

DCA), review granted, No. SC18-309, 2018 WL 3097727 (Fla. June 25, 2018).

              At Mr. Brady's trial, the trial court specifically directed the parties to the

missing definitions of justifiable and excusable homicide in the jury instructions.

Defense counsel acknowledged the omission. Yet, she agreed to the incomplete jury

instructions without objection. Under the circumstances, Mr. Brady affirmatively waived

any claim to assert fundamental error. See Spencer, 216 So. 3d at 486; Van Loan, 736

So. 2d at 804; see, e.g., Knight, 267 So. 3d at 49 ("conclud[ing] that the facts

established a waiver of the fundamental error" where, "[o]f particular weight was the fact

that the trial court expressly directed defense counsel's attention to the intent element

as a potential error, and counsel agreed to using the language anyway because it was

in the standard instructions").

                 III.   Certified Question of Great Public Importance

              We acknowledge that some courts, including this court, have

questioned—without making any definitive ruling on the matter—whether waiver further

requires the record to reflect that counsel knew the omission itself was erroneous. See

Sams, 44 Fla. L. Weekly at D967 (certifying, "Is it fundamental error to convict a

defendant under an altered or incomplete lesser included charge where counsel

affirmatively agrees to the instruction, but the record does not show that counsel was

aware of the alteration or omission and affirmatively agreed to it and is it also necessary

for the record to demonstrate that counsel was aware that the instruction, as altered,

was erroneous" (emphasis added)); Knight, 267 So. 3d at 50 (certifying whether counsel

must be aware the instruction was erroneous to waive fundamental error). Such a
                                             -6-
question may necessarily require the consideration of counsel's obligation to stay

abreast of developments in the law and to maintain the requisite legal knowledge and

skill in counsel's practice area. See R. Regulating Fla. Bar 4-1.1, Competence ("A

lawyer must provide competent representation to a client. Competent representation

requires the legal knowledge, skill, thoroughness, and preparation reasonably

necessary for the representation."); see also Knight, 267 So. 3d at 47-48 (recognizing

counsel's obligation to remain informed). With this in mind, we certify the same

question we certified in Sams, as one of great public importance:

             IS IT FUNDAMENTAL ERROR TO CONVICT A
             DEFENDANT UNDER AN ALTERED OR INCOMPLETE
             LESSER INCLUDED CHARGE WHERE COUNSEL
             AFFIRMATIVELY AGREES TO THE INSTRUCTION, BUT
             THE RECORD DOES NOT SHOW THAT COUNSEL WAS
             AWARE OF THE ALTERATION OR OMISSION AND
             AFFIRMATIVELY AGREED TO IT AND IS IT ALSO
             NECESSARY FOR THE RECORD TO DEMONSTRATE
             THAT COUNSEL WAS AWARE THAT THE INSTRUCTION,
             AS ALTERED, WAS ERRONEOUS?

44 Fla. L. Weekly at D967; see also Knight, 267 So. 3d at 49-50 (certifying similar

question of great public importance).

             Affirmed; question of great public importance certified.



MORRIS and SLEET, JJ., Concur.




                                          -7-
