       Third District Court of Appeal
                             State of Florida

                      Opinion filed November 14, 2018.


                            ________________

                              No. 3D17-1054
                        Lower Tribunal No. 09-16074
                            ________________


                               Simon Silva,
                                 Appellant,

                                     vs.

                          The State of Florida,
                                 Appellee.


      An Appeal from the Circuit Court for Miami-Dade County, Teresa Mary
Pooler, Judge.

      Carlos J. Martinez, Public Defender, and Jonathan Greenberg, Assistant
Public Defender, for appellant.

      Pamela Jo Bondi, Attorney General, and Jonathan Tanoos, Assistant
Attorney General, for appellee.


Before SALTER, EMAS and LOGUE, JJ.

     PER CURIAM.

                  On Motions for Clarification or Rehearing
      Following the issuance of our opinion in this case on September 20, 2018,

(1) the appellant, Mr. Silva, filed a motion for clarification, and (2) the appellee,

State of Florida, filed a motion for rehearing or clarification. We directed each

party to file a response to the other party’s motion, and each provided a thoughtful

and helpful memorandum. Upon consideration of the motions and responses, we

withdraw our opinion of September 20, 2018, grant both parties’ separate motions

for clarification, deny the State’s alternative motion for rehearing, and issue this

opinion in the place and stead of the prior opinion.

                                          I.

      Simon Silva appeals his convictions for the second-degree murder of

Samuel Forman and the attempted first-degree murder of Deborah Daoud. Silva

argues that the trial court committed fundamental error by using a jury instruction

that shifted the burden to Silva to prove Forman’s alleged aggression beyond a

reasonable doubt in order to establish the defense of self-defense. We reverse

Silva’s conviction as to the second-degree murder count, but affirm Silva’s

conviction and sentence on the count for the attempted first-degree murder of

Daoud. Silva’s counsel did not request a self-defense jury instruction regarding

the attempted first-degree murder count, thus waiving any claim of error for failure

to give such an instruction.

                                         II.



                                          2
      Silva was charged with the first-degree murder of his employer and

landlord, Forman; and the attempted first-degree murder of a neighbor, Daoud.

The charges arose from the shooting of both Forman and Daoud following a

confrontation between Silva and Forman.              The parties’ account of the

confrontation differed: Silva claimed he reacted in self-defense, based on a prior

threat by Forman and Forman’s reach for a dark object in his pocket; while the

State claimed Silva was the initial and primary aggressor.           The undisputed

evidence, however, demonstrated that Silva shot both Forman and Daoud, with

Forman succumbing to his injuries.

      At trial,1 Silva claimed the shootings were in response to the aggressive

demeanor and actions of Forman and Daoud. Silva resided in a trailer on, and

worked at, Forman’s junkyard.        Silva claimed that Forman started a verbal

altercation when Forman observed Silva’s unauthorized use of electricity to power

his trailer. The parties’ confrontation escalated quickly. After a brief exchange of

words, Forman allegedly stated “I’m going to shoot you” and reached into his front

pocket. Silva testified that he observed Forman pull out a black object, which

Silva believed to be a pistol. Silva claimed that this belief, and the accompanying

fear, led to the shooting and killing of Forman.



1Silva’s trial was his second trial due to this Court’s decision in Silva v. State, 190
So. 3d 151 (Fla. 3d DCA 2016).

                                          3
      Following the initial shooting, Silva testified that Daoud grew visibly upset

and threatened him. Silva claimed Daoud attempted to lunge and throw a

microwave at him. Silva reacted to these actions by shooting Daoud, who survived

the injuries and fled the scene. Following these events, Silva awaited the arrival of

the police. Silva’s explanation of the events was emphasized by defense counsel at

the beginning of closing arguments, “This is a case of self-defense.”

      To discredit the self-defense claim, the State presented a differing account of

the events. The State portrayed Silva as the initial aggressor and a disgruntled

former employee and tenant.       For example, the State presented Daoud, who

testified that Silva was “aggressive” and “pulled the gun out of nowhere . . . [and]

just shot [Forman] once.” Thereafter, Daoud explained, “[Forman] was kneeling .

. . with his hands up” and “[Silva] shot [Forman] again.” The State claimed the

evidence—including, for example, the testimony of Daoud—demonstrated that

Silva shot two unarmed individuals who did not act in a manner to justify Silva’s

claim of self-defense.

      After each side presented its case, the trial court engaged in a standard

colloquy with Silva and his counsel regarding the jury instructions. The following

exchange occurred:

      THE COURT: All right. So do we need to go over them again, just
      put it on the record in the presence of the defendant? Defense, had you
      made any objections to any of the substance of matters contained in
      the jury instructions?


                                         4
[Silva’s Counsel]: No, I have not, [y]our Honor, and I'm in agreement
with them. And I've informed my client that I'm in agreement with
them. . . . I believe he's in agreement with the -- with the instructions
the way they're written right now.

...

THE COURT: All right. Mr. Silva, are you satisfied then with what
your attorney is saying about him going over the jury instructions and
finding them to be not objectionable, and you're in agreement with
that?

DEFENDANT SILVA: Yes, [y]our Honor.

Following this exchange, the trial court instructed the jury on self-defense:

       THE COURT: An issue in this case is whether the defendant
acted in self-defense. It is a defense to the offense which Simon Silva
is charged if the death of Samuel Forman resulted from the justifiable
use of deadly force.
       Deadly force means force likely to cause death or great bodily
harm. The use of deadly force is justifiable only if the defendant
reasonably believes that the force is necessary to prevent imminent
death or great bodily harm to himself while resisting another's attempt
to murder him or an attempt to commit an attempted first-degree
premeditated murder upon him.
       To find the defendant was justified in his use of deadly force to
resist an attempted first-degree premeditated murder, you must find
the following three elements beyond a reasonable doubt. Samuel
Forman did some act intended to cause the death of Simon Silva that
went -- went beyond just thinking or talking about it. Samuel Forman
acted with a premeditated design to kill Simon Silva, the act would
have resulted in the death of Simon Silva except that someone
prevented Samuel Forman from killing Simon Silva or he failed to do
so.
       ...
       A person is justified in using deadly force if he reasonably
believes that such force is necessary to prevent imminent death or
great bodily harm to himself or another or the imminent commission


                                   5
      of an attempted first-degree premeditated murder against himself or
      another.

(Emphasis added). The written jury instructions included the same language:

             To find [SILVA] was justified in his use of deadly force to
      resist an Attempted First-Degree Premeditated Murder, you must find
      the following three elements beyond a reasonable doubt:

         1. SAMUEL [FORMAN]2 did some act intended to cause the
            death of SIMON SILVA that went beyond just thinking or
            talking about it.

         2. SAMUEL [FORMAN] acted with a premeditated design to kill
            SIMON SILVA.

         3. The act would have resulted in the death of SIMON SILVA
            except that someone prevented SAMUEL [FORMAN] from
            killing SIMON SILVA or he failed to do so.

      These instructions were repeated a total of three times. Silva’s counsel did

not object to the trial court’s instructions; Silva concedes this point on appeal. No

separate instruction on use of force and self-defense was requested or given among

the instructions relating to the count for the first-degree attempted murder of

Daoud.

      Following the jury instructions, the case was submitted to the jury. The jury

found Silva guilty of second-degree murder of Forman and attempted first-degree

murder of Daoud. Silva was sentenced to life in prison. Silva’s appeal followed.



2  The written jury instructions, verdict form, and investigative record identify
Forman as “Foreman.” We refer to Mr. Forman, the name provided in the
information.

                                         6
                                          III.

      A.       Second-Degree Murder Conviction and Sentence (Forman)

      The jury instruction regarding self-defense as to the second-degree murder

of Forman was not the then-current standard instruction, and it was error to issue it.3

The error was not preserved and is reviewed for fundamental error. Wyche v.

State, 170 So. 3d 898, 903 (Fla. 3d DCA 2015).

      The responsibility to ensure that the jury is properly instructed ultimately

rests with the trial court, not counsel. While counsel may assemble and submit

proposed instructions, the court may not delegate to counsel the court’s non-

delegable duty to assure that the jury is instructed on the correct law to be applied

to the case.

      Florida Rule of Criminal Procedure 3.985 provides that the trial court should

generally give the standard jury instructions (found on the Florida Supreme

Court’s website). If the trial court deviates from, or modifies, the standard jury

instruction, it is required to state on the record or in a separate order the reasons for

doing so. Thus, while the standard jury instructions may be presumed to be

correct, final responsibility for correctly instructing the jury remains with the trial


3 Between 2006 and 2007, the standard jury instruction inadvertently contained the
inaccurate language putting the burden of proof on the defendant. The instruction
was amended to its present form in 2007 to correct the mistake; In re Standard Jury
Instructions, 947 So. 2d 1159 (Fla. 2007). The trial in the present case took place
in 2017, ten years after the erroneous language was removed.

                                           7
court. State v. Hamilton, 660 So. 2d 1038, 1046 (Fla. 1995); Lozano v. State, 584

So. 2d 19, 24 (Fla. 3d DCA 1991).

      In the present case, the erroneous instruction placed the burden upon Silva to

prove his claim of self-defense on the charge of second-degree murder. We hold

that, under these circumstances, this burden-shifting instruction rose to the level of

fundamental error, depriving Silva of a fair trial on the charge for which he relied

upon his claim of self-defense. Alexander v. State, 121 So. 3d 1185 (Fla. 1st DCA

2013); Montijo v. State, 61 So. 3d 424 (Fla. 5th DCA 2011).

      As to Silva’s claim of self-defense on the charge of second-degree murder

for the shooting and death of Forman, the State makes two arguments: first, that

defense counsel affirmatively agreed to the erroneous jury instruction, and second,

that we should not address the point because of the concurrent sentence doctrine.

      As to defense counsel’s affirmative acceptance of the erroneous jury

instruction, we are bound by this Court’s holding in Philippe v. State, 795 So. 2d

173 (Fla. 3d DCA 2001). Philippe holds that in order for defense counsel’s

agreement with a defective jury instruction to constitute a waiver, defense counsel

must be aware of the defect “and affirmatively agree to it.” Id. at 174.

      In this case, there is no evidence in the record to demonstrate that defense

counsel knew the wrong version of the standard jury instruction was under

consideration. Defense counsel apparently thought he was agreeing to the then-



                                          8
effective form of standard jury instruction on justifiable use of force, and there is

no indication that counsel for the parties or the court knew otherwise.

      The State urges us to reject the more stringent holding of Philippe regarding

counsel’s failure to object to a defective instruction, and to follow instead the more

recent analysis of our sibling court in Knight v. State, 43 Fla. L. Weekly D404

(Fla. 1st DCA Feb. 19, 2018), review granted, No. SC18-309 (Fla. June 25, 2018).4

In that case, the trial court used a jury instruction on attempted voluntary

manslaughter by act that had been invalidated by the Florida Supreme Court

several years earlier (in State v. Montgomery, 39 So. 3d 252 (Fla. 2010)), thereby

committing fundamental error.

      The First District concluded, however, that objections to the erroneous

instruction were waived by counsel, noting among other factors “the existence of a

plausible strategic reason for allowing the erroneous instruction to go to the jury.”

Knight, 43 Fla. L. Weekly at D407. That Court also addressed defense counsel’s

“active involvement in developing the jury instructions.” Id. at D408. The First

District certified a question of great public importance on the waiver issue,5 and

4  To recede from Philippe, as urged by the State, this Court would be required to
consider and determine the case en banc.
5 The certified question is: IN ORDER FOR COUNSEL TO WAIVE AN ERROR
IN A JURY INSTRUCTION THAT WOULD OTHERWISE BE
FUNDAMENTAL, IS IT ONLY NECESSARY THAT COUNSEL
AFFIRMATIVELY AGREE TO THE INSTRUCTION, OR IS IT ALSO
NECESSARY FOR COUNSEL TO AFFIRMATIVELY AGREE TO THE

                                          9
the Florida Supreme Court has now accepted jurisdiction. Knight v. State, No.

SC18-309 (Fla. June 25, 2018).

      As to the State’s invocation of the concurrent sentence doctrine, the State

relies on Jordan v. State, 143 So. 3d 335, 338 (Fla. 2014) (“in the case of multiple

concurrent sentences, an appellate court need not address challenges to every

conviction where another conviction with a concurrent sentence of equal or greater

length has been affirmed on appeal.” (citing Hirabayashi v. United States, 320 U.S.

81, 85 (1943)). More recently, this Court applied the doctrine in Green v. State,

224 So. 3d 252, 256 (Fla. 3d DCA 2017) (life sentence for kidnapping and sexual

battery charges did not amount to fundamental error because the defendant was

serving a concurrent life sentence for an armed robbery conviction).

      We reject the State’s extension of the doctrine to the present case, however,

in this direct appeal. See Camellon v. State, 178 So. 3d 910, 911 n.3 (Fla. 3d DCA

2015).

      Based on these authorities, the concededly erroneous jury instruction on

justifiable use of force in the second-degree murder case, and the fundamental

error inherent in giving that instruction, we reverse Silva’s conviction and sentence




PORTION OF THE INSTRUCTION THAT IS ERROR AND/OR TO BE
AWARE THAT THE INSTRUCTION IS ERRONEOUS? Knight, 43 Fla. L.
Weekly at D409.

                                         10
on the second-degree murder count. We remand the case to the trial court for a

new trial on that count.

      B.     Attempted First-Degree Murder Conviction and Sentence (Daoud)

      As to the charge of attempted first-degree murder of Daoud, Silva failed to

request a jury instruction on self-defense, and no self-defense instruction (proper or

erroneous) was given to the jury on this count. After the instructions were read to

the jury, Silva failed to raise any objection to the instructions as given. These

failures are fatal to Silva’s claim, as the issue was not preserved and is not

fundamental error. See Muteei v. State, 708 So. 2d 626 (Fla. 3d DCA 1998);

Goode v. State, 856 So. 2d 1101 (Fla. 1st DCA 2003). See also Holiday v. State,

753 So. 2d 1264 (Fla. 2000).

      The evidence at trial regarding Silva’s allegedly justifiable use of force

against the neighbor/victim, Daoud, was scant. Consistent with that paucity of

evidence, the erroneous jury instruction approved and read to the jury on the

second-degree murder count was not included with the instructions pertaining to

the attempted first-degree murder count. The self-defense instructions read to the

jury mentioned only Forman’s name and did not refer to Daoud. Three separate

times the instruction stated that self-defense required a demonstration that “Samuel

Forman acted with a premeditated design to kill Simon Silva.”




                                         11
      It is undisputed that Silva used deadly force in his initial interaction with

Forman, his landlord, before Silva turned his attention to Daoud. Silva testified

that Forman’s employees had told him that Forman carried a gun; that Forman

pulled a black object from his right pocket; and that Forman said “I’m going to

shoot you.”

      As to Daoud, however, there was no such testimony or evidence. Silva

himself said that Daoud’s approach was after Silva had shot Forman.             His

testimony that he feared Daoud was going to “throw the microwave at [him],” was

undercut by crime scene photographs showing the microwave, and by Silva’s own

testimony that he placed his firearm on the microwave as he called 911 to report

the shootings. In Silva’s initial statement regarding the shootings, Silva did not

think that he had shot anyone other than Forman. He told police in that initial

interview that he had reported to 911 that “he had shot his boss,” which could only

be a reference to Forman (Daoud was only a neighbor, not Silva’s employer or

landlord).

      Regarding Silva’s prior interactions with Forman, Silva testified that

Forman had previously threatened to shoot him. Silva said that he had not reported

the prior threat to the police, because Forman was a lawyer and a millionaire, and

“All the police around there, they know him.” Silva never mentioned any such

threat, concern, or interaction regarding Daoud. So the defense’s failure to request



                                        12
or include a separate instruction relating to a claim of justifiable use of force

against Daoud may have been intentional.

      Silva’s argument that the erroneous instruction regarding the second-degree

murder count may have infected the jury’s consideration of the attempted first-

degree murder count involving Daoud is unavailing. The complete omission of

Daoud’s name from the self-defense instruction given as to the second-degree

murder charge and Forman distinguishes the present case from the fundamental

errors involved in cases such as Alexander and Montijo, cited above and by Silva.

      Nor is Silva’s back-up argument, a claim of ineffective assistance of counsel

“apparent on the face of the record,” citing McMullen v. State, 876 So. 2d 589, 590

(Fla. 5th DCA 2004), persuasive. First, McMullen itself affirmed the defendant’s

conviction and sentence, confirming that “normally” (and in McMullen’s case)

ineffective assistance of trial counsel claims are not cognizable on direct appeal.

Id. Second, this Court has declined to find ineffective assistance of trial counsel

when such a claim is raised on direct appeal and prejudice is not obvious, but

debatable, and thus cognizable only on a motion for post-conviction relief. Corvo

v. State, 916 So. 2d 44, 46 (Fla. 3d DCA 2005).

      For these reasons we affirm Silva’s conviction on the attempted first-degree

murder count.

                                       IV.



                                        13
      As to the second-degree murder conviction and sentence, and Silva’s claim

regarding the erroneous jury instruction on justifiable use of force and Forman, we

reverse and remand the case for a new trial. In doing so, we specifically confirm

our reliance on this Court’s decision in Philippe regarding the claim of waiver by

counsel and the erroneous jury instruction at issue here. We conclude that Philippe

conflicts with the First District’s analysis in Knight and could be affected by the

Florida Supreme Court’s resolution of the question certified by the First District in

that case.

      As to the attempted first-degree count and Daoud, we affirm Silva’s

conviction and sentence without prejudice for him to move for post-conviction

relief on his claim of ineffective assistance of counsel. In doing so, we express no

opinion regarding the merit or lack of merit respecting any such motion.




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