          Supreme Court of Florida
                                    ____________

                                    No. SC18-309
                                    ____________

                          ARNOLD JEROME KNIGHT,
                                 Petitioner,

                                           vs.

                               STATE OF FLORIDA,
                                   Respondent.

                                  December 19, 2019

PER CURIAM.

      We review the decision of the First District Court of Appeal in Knight v.

State, 267 So. 3d 38 (Fla. 1st DCA 2018), which affirmed Knight’s conviction for

attempted second-degree murder with a weapon where the jury was given an

erroneous jury instruction on the lesser included offense of attempted voluntary

manslaughter with a weapon.1 For the reasons that follow, we approve the result

of the First District’s decision but not its reasoning.

                                 I. BACKGROUND

      The First District set forth the pertinent facts as follows:


      1. We have jurisdiction. See art. V, § 3(b)(4), Fla. Const.
       [Knight] challenges his conviction and thirty-year sentence for
attempted second-degree murder of his former girlfriend. The
evidence supported the conclusion that he used a heavy, metal
hydraulic jack handle to beat the victim very severely in her face and
head, breaking the arm she used to try to block the attack, and
breaking one of her eye sockets, in addition to inflicting other serious
injuries to her face and head, including a gash down to her skull,
leaving her with permanent residual impairments. The emergency
medicine physician who treated the victim testified that the injuries
required a direct blow of great force.
       The victim testified that [Knight] had lived with her and her
two young-adult children for a short time and had previously
threatened to kill her if she ever tried to leave him. After [Knight]
moved out of the victim’s house at the request of the victim and her
son, the victim obtained an injunction for protection against domestic
violence against [Knight]. Nine hours after he was served with that
injunction, at a time when he was aware from having lived with the
victim that she would be leaving her house alone to prepare to leave in
her car, [Knight] was waiting for her and attacked her. The victim
saw him begin beating her with the weapon, although the severity of
the beating prevented her from remembering the remainder of the
attack. The victim’s son heard her call out, and was an eyewitness to
part of the attack. He saw [Knight] with the weapon in his hand and
confronted him. The victim’s daughter saw [Knight] walking away
from the attack carrying an object matching the description of the
weapon.
       The weapon was found a short distance away, between the
victim’s house and the place where law enforcement found [Knight].
The weapon was found to have the victim’s DNA on both ends and
[Knight]’s DNA on one end. Although the weapon was the handle to
a hydraulic jack, no such jack was found anywhere near the victim’s
house or surrounding area, supporting the conclusion that [Knight]
had brought it with him. The presence of the weapon, together with
the evidence of [Knight]’s having been served with the domestic
violence injunction just hours earlier, his timed arrival at the victim’s
house, and his lying in wait for her, also supported the conclusion that
[Knight] had planned the attack in advance.
       [Knight] did not testify at his trial, but neither the fact of the
attack nor [Knight]’s identity as the attacker was disputed. There was

                                  -2-
      evidence that upon being informed of the charges including use of a
      crowbar as a weapon, [Knight] spontaneously denied having used a
      weapon; but there was no evidence explaining how the victim’s
      serious injuries including a deep gash down to her skull could have
      been inflicted with bare hands. Defense counsel argued to the jury
      that the attack was not premeditated, [Knight] had no intent to kill the
      victim, and the evidence was insufficient to establish that [Knight]
      had used the jack handle as his weapon for the attack.
             The jury was instructed on the following offenses in the
      following order:
             - attempted first-degree premeditated murder with a weapon
             (the charged offense);
             - attempted first-degree premeditated murder;
             - attempted second-degree murder with a weapon (the offense
             of conviction);
             - attempted second-degree murder;
             - attempted voluntary manslaughter with a weapon (the
             erroneous instruction);
             - attempted voluntary manslaughter;
             - aggravated battery with a deadly weapon or great bodily harm;
             - felony battery with great bodily harm; and
             - battery.

Knight, 267 So. 3d at 40-41. The instruction for attempted voluntary manslaughter

that was provided to the jury included intent to kill language; however, less than

one month before Knight’s trial, this Court approved a standard jury instruction for

attempted manslaughter by act that eliminated the intent to kill language. See In re

Standard Jury Instructions in Criminal Cases–Instruction 6.6, 132 So. 3d 1124,

1125 (Fla. 2014).2



      2. The offense of attempted voluntary manslaughter was renamed attempted
manslaughter by act in In re Standard Jury Instructions in Criminal Cases—
Instruction 6.6, 132 So. 3d at 1126.

                                        -3-
      On appeal, the First District concluded that the erroneous jury instruction did

not constitute fundamental error because this Court receded from the jury pardon

doctrine—which holds that the jury must be given a fair opportunity to exercise its

inherent pardon or nullification power by returning a verdict of guilty as to the next

lower crime—in Dean v. State, 230 So. 3d 420, 425 (Fla. 2017). Knight, 267 So.

3d at 42-44. This Court’s decision in Dean generated four opinions. Justices

Lewis, Canady, and Lawson concurred with the per curiam opinion. Justice

Polston concurred with an opinion in which Justices Canady and Lawson

concurred. Justice Quince concurred in result only with an opinion. Justice

Pariente concurred in part and dissented in part with an opinion, and Chief Justice

Labarga was recused.

      The First District also held that, even if this Court has not abrogated the jury

pardon doctrine, the defendant waived what otherwise would have been

fundamental error in giving the erroneous jury instruction. Knight, 267 So. 3d at

44-45. At trial, the trial judge gave the prosecutor and defense counsel overnight

to review the proposed jury instructions. Upon return the next morning, defense

counsel indicated that he generally had no objection to the jury instructions.

Specifically he stated, “No objection, Judge. I did read through these last night and

I didn’t really have a problem with any of the instructions.” The record reflects

defense counsel’s further participation in discussions and drafting instructions.


                                        -4-
The discussion of the attempted voluntary manslaughter with a weapon instruction

at issue in this case was a brief discussion in the context of the definition of a

weapon. There was no discussion regarding the improper “intent to kill” language.

Defense counsel neither requested this instruction nor objected to the instructions

as given. In deciding whether Knight waived his claim, the First District

considered the totality of the circumstances, including

      the legal anomaly that results when counsel’s failure to object to a
      fundamentally erroneous jury instruction has the legal effect of
      benefiting the defendant; the fact that this jury instruction had been
      declared erroneous and replaced with a valid instruction . . . before
      this trial; and the fact that experienced counsel represented to the
      court that he had read and had no objections to the jury instructions,
      and was actively involved in reviewing and revising the jury
      instructions as a whole.
Id. The First District concluded that Knight’s “counsel waived the fundamental

error in the improper jury instruction for manslaughter.” Id. at 49.

                                   II. ANALYSIS

      Knight argues that the trial court committed fundamental error and that he is

entitled to relief from his conviction of attempted second-degree murder with a

weapon, even though the evidence supports the elements of the conviction, because

the jury instruction on the lesser included offense of attempted voluntary

manslaughter with a weapon erroneously included the element of intent to kill.

Knight further argues that the First District erred in holding that this Court’s

decision in Dean abrogated the jury pardon doctrine and that the Fourth District’s


                                          -5-
decision in Caruthers v. State, 232 So. 3d 441 (Fla. 4th DCA 2017), correctly

concluded that this Court’s decision in Dean did not abrogate the jury pardon

doctrine. This issue presents a pure question of law; therefore, the standard of

review is de novo. See Kirton v. Fields, 997 So. 2d 349, 352 (Fla. 2008).

      We need not resolve the question whether a majority of the Court abrogated

the jury pardon doctrine in Dean, because we now reconsider the jury pardon

doctrine and more closely align ourselves with the majority of jurisdictions that do

not recognize what is most accurately described as a fundamental right to

instructions that facilitate partial jury nullification. Specifically, we recede from

precedent and conclude that fundamental error did not occur because there was no

error in the jury instruction on the offense of conviction, the evidence supports that

offense, and the defendant’s constitutional rights were not violated even if he was

deprived of an opportunity for partial jury nullification. Accordingly, we agree

with the result of the First District’s decision. In light of our decision on this issue,

we need not and do not address the First District’s alternative holding on waiver.

               The Standard for Establishing Fundamental Error

      Jury instruction errors are subject to the contemporaneous objection rule.

See State v. Weaver, 957 So. 2d 586, 588 (Fla. 2007); State v. Delva, 575 So. 2d

643, 644 (Fla. 1991). In the absence of a contemporaneous objection at trial, a jury

instruction error is only subject to relief in the event of fundamental error. See


                                          -6-
Weaver, 957 So. 2d at 588. Here there was no contemporaneous objection to the

disputed jury instruction.

         This Court set out the test for determining fundamental error in Brown v.

State, 124 So. 2d 481 (Fla. 1960). We held that, to overcome the timely objection

rule and be deemed fundamental, “the error must reach down into the validity of

the trial itself to the extent that a verdict of guilty could not have been obtained

without the assistance of the alleged error.” Id. at 484. We indicated that, to

establish fundamental error, it would have to be shown that “the error of the trial

judge necessarily and inescapably produced the ultimate jury verdict” and that the

error “permeate[d] or saturate[d] the trial” with “basic invalidity.” Id.

         Properly understood, the fundamental error test for jury instructions cannot

be met where, as in this case, there was no error in the jury instruction for the

offense of conviction and there is no claim that the evidence at trial was

insufficient to support that conviction. In such circumstances, one cannot plausibly

claim that the conviction “could not have been obtained” without the erroneous

lesser included offense instruction or that the error vitiated the basic validity of the

trial.




                                          -7-
                          Florida’s Jury Pardon Doctrine

      In the cases on which Knight relies, we erred in our fundamental error

analysis. Most importantly, we erred by transforming the unreviewable pardon

power of the jury into a fundamental right of the defendant. And we further erred

by treating the deprivation of the defendant’s nonexistent right to the availability of

a jury pardon as a structural defect that vitiates the fairness of the trial. We thus

recede from our precedents to the extent they found fundamental error based on an

erroneous jury instruction for a lesser included offense one step removed from the

offense of conviction.

      In State v. Montgomery, 39 So. 3d 252, 259 (Fla. 2010), this Court reversed

a second-degree murder conviction because the standard jury instruction on

manslaughter by act erroneously included the element of intent to kill. This Court

held that “[b]ecause Montgomery’s conviction for second-degree murder was only

one step removed from the necessarily lesser included offense of manslaughter . . .

fundamental error occurred in his case which was per se reversible where the

manslaughter instruction erroneously imposed upon the jury a requirement to find”

intent to kill. Id. Further, in Williams v. State, 123 So. 3d 23, 29 (Fla. 2013),

which involved an erroneous attempted manslaughter by act instruction, this Court

stated that “the defendant is entitled to an accurate instruction on the charged

offenses and all lesser included offenses, and when the defendant is convicted of a


                                          -8-
crime not more than one step removed from the crime for which an erroneous

instruction is given, fundamental error occurs if the instruction pertains to a

disputed element of the crime.”

      The result of this precedent is only reached through the jury pardon doctrine,

i.e., “the jury’s inherent power to pardon a defendant by convicting the defendant

of a lesser offense.” Sanders v. State, 946 So. 2d 953, 957 (Fla. 2006); see, e.g.,

Haygood v. State, 109 So. 3d 735, 746 (Fla. 2013) (Canady, J., dissenting) (“This

result is reached because under Florida law⸺as articulated by this Court in the jury

pardon doctrine⸺defendants have a fundamental right for the jury to be correctly

instructed on one-step-removed necessarily lesser included offenses.”); Dean, 230

So. 3d at 425 (Polston, J., concurring) (same). However, as this Court recognized

in Sanders, a jury pardon “remains a device without legal foundation” and is

“essentially ‘a not guilty verdict rendered contrary to the law and evidence’ and is

an aberration.” 946 So. 2d at 958 (quoting Willis v. State, 840 So. 2d 1135, 1138

(Fla. 4th DCA 2003) (Klein, J., concurring specially)).

      As Justice Canady fully explained in his dissent in Haygood, 109 So. 3d at

746, Florida’s jury pardon doctrine “is at odds with both federal law and the law of

the vast majority of the states” and “is corrosive of the rule of law.” Significantly

for purposes of this case, Justice Canady demonstrated that this Court’s application




                                         -9-
of the jury pardon doctrine has been “inconsistent with our general standard for

determining fundamental error in jury instructions”:

      In any case where the evidence supports the jury’s verdict of guilt on
      the charged offense and no error was made in the instructions
      regarding that offense, it is hard to fathom how an error in an
      instruction regarding a lesser included offense would properly be
      considered an error without which “a verdict of guilt could not have
      been obtained.” But the departure from our general doctrine of
      fundamental error is magnified where . . . an error in an instruction
      regarding a lesser included offense is declared fundamental even
      though there is no evidentiary basis for an instruction on that offense.
      The “validity of the trial itself” is said to be vitiated because the jury
      was not correctly instructed on an inapplicable lesser offense [in order
      to be] fully afforded the opportunity to act in an irrational and lawless
      manner. This is a far cry from the cases in which we have held that
      fundamental error occurred because a defendant was convicted of an
      offense and the jury was not properly instructed concerning the
      elements of that offense. See Gerds v. State, 64 So. 2d 915, 916 (Fla.
      1953); Reed v. State, 837 So. 2d 366, 369 (Fla. 2002).
             Contrary to the logic of the jury pardon doctrine, interference
      with an opportunity for the jury to carry out a partial jury nullification
      does not undermine the validity of the trial. No defendant has the
      right to a trial in which the judge facilitates the jury’s acting in
      disregard of the law.

Haygood, 109 So. 3d at 749 (Canady, J., dissenting).

      Knight attempts to get around these problems with the jury pardon doctrine

by arguing that his conviction should be reversed based on the test, originating in

Stewart v. State, 420 So. 2d 862 (Fla. 1982), that “fundamental error occurs only

when the omission is pertinent or material to what the jury must consider in order

to convict.” Id. at 863. According to Knight, because the mens rea requirements

for second-degree murder and manslaughter are different, and because the jury in

                                        - 10 -
his case needed to consider mens rea, the erroneous jury instruction was pertinent

or material to the jury’s decision in his case. Our fundamental error analysis in

Haygood and Griffin v. State, 160 So. 3d 63 (Fla. 2015), which relied in part on the

Stewart test, lends some support to Knight’s argument.

         Knight’s argument—together with this Court’s analysis in Haygood and

Griffin—takes our analysis in Stewart out of context. Stewart involved an error in

the jury instruction on an element of the offense of conviction. We held in Stewart

that even in that context there is no fundamental error if the element was not

disputed at trial. As we implicitly recognized in State v. Delva, 575 So. 2d 643

(Fla. 1991), Stewart did nothing more than apply the Brown test for fundamental

error:

         To justify not imposing the contemporaneous objection rule, “the
         error must reach down into the validity of the trial itself to the extent
         that a verdict of guilty could not have been obtained without the
         assistance of the alleged error.” Brown, 124 So. 2d at 484. In other
         words, “fundamental error occurs only when the omission is pertinent
         or material to what the jury must consider in order to convict.”
         Stewart v. State, 420 So. 2d 862, 863 (Fla. 1982). Failing to instruct
         on an element of the crime over which the record reflects there was no
         dispute is not fundamental error and there must be an objection to
         preserve the issue for appeal. E.g., Stewart . . . .”

Delva, 575 So. 2d at 644-45; see also Reed v. State, 837 So. 2d 366 (Fla. 2002)

(invoking Brown and Stewart test to find fundamental error involving an element

of the offense of conviction).




                                          - 11 -
      Our decision in Stewart did not loosen or in any way expand the

fundamental error test of Brown. Stewart simply applied Brown in a factual

context where the trial court erred in instructing the jury on an element of the

offense of conviction but there was no dispute as to that element at trial. The

Stewart analysis upon which Knight relies has no bearing on cases, like this one,

where the jury was properly instructed on the offense of conviction.

      Based on the above, we recede from this Court’s precedents relying on a

right of access to a partial jury nullification as a basis for finding fundamental error

in jury instructions. In doing so, we more closely align Florida with the federal

courts and other jurisdictions 3 that do not recognize the jury pardon doctrine. We


       3. See, e.g., Dinkins v. State, 584 So. 2d 932, 934 (Ala. Crim. App. 1991);
Abdulbaqui v. State, 728 P.2d 1211, 1214-15 (Alaska Ct. App. 1986); State v.
Murray, 906 P.2d 542, 567 (Ariz. 1995); State v. Jones, 903 S.W.2d 170, 173
(Ark. 1995); People v. Sisneros, 738 P.2d 1196, 1197 (Colo. App. 1987); State v.
Huckabee, 677 A.2d 452, 454 (Conn. App. Ct. 1996); Mallory v. State, 305 S.E.2d
656, 658-59 (Ga. Ct. App. 1983); People v. Lopez, 614 N.E.2d 329, 333 (Ill. App.
Ct. 1993), aff’d, 655 N.E.2d 864 (Ill. 1995); Little v. State, 501 N.E.2d 447, 449-50
(Ind. 1986); State v. Sutherland, 804 P.2d 970, 974-75 (Kan. 1991);
Commonwealth v. Mack, 667 N.E.2d 867, 868 (Mass. 1996); State v. Steward, 936
S.W.2d 592, 594 (Mo. Ct. App. 1996); State v. Short, 618 A.2d 316, 319 (N.J.
1993); People v. Garcia, 631 N.Y.S.2d 384, 385 (N.Y. App. Div. 1995); State v.
Barnes, 479 S.E.2d 236, 239 (N.C. 1997); State v. Larson, 554 N.W.2d 655, 656
(N.D. 1996); State v. Wilson, 659 N.E.2d 292, 306 (Ohio 1996); Al-Mosawi v.
State, 929 P.2d 270, 283 (Okla. Crim. App. 1996); Commonwealth v. Thomas, 546
A.2d 116, 118 (Pa. Super. Ct. 1988); State v. Froais, 653 A.2d 735, 737-38 (R.I.
1995); State v. Byrd, 474 S.E.2d 430, 433 (S.C. 1996); Lavarry v. State, 936
S.W.2d 690, 693-94 (Tex. App. 1996); State v. Speece, 798 P.2d 294, 295 (Wash.
1990); State v. Glenn, 545 N.W.2d 230, 234 (Wis. 1996); Warren v. State, 835
P.2d 304, 311 (Wyo. 1992).

                                         - 12 -
make this decision mindful of the importance of stare decisis in most cases. While

the doctrine of stare decisis is “strong,” it is “not unwavering.” Brown v.

Nagelhout, 84 So. 3d 304, 309 (Fla. 2012). This Court in the past has receded

from precedents that it deemed clearly erroneous. See, e.g., Shepard v. State, 259

So. 3d 701, 707 (Fla. 2018). Importantly, our decision today does not undermine

valid reliance interests. As the Supreme Court has observed, the role of stare

decisis is reduced in the case of procedural rules, such as the ones at issue here,

that do not “serve as a guide to lawful behavior.” United States v. Gaudin, 515

U.S. 506, 521 (1995).

      We note that, in State v. Wimberly, 498 So. 2d 929 (Fla. 1986), we relied on

“the jury’s right to exercise its ‘pardon power’ ” as part of the rationale for our

interpretation of Florida Rule of Criminal Procedure 3.510(b) and our holding that,

under that rule, “[t]he trial judge has no discretion in whether to instruct the jury on

a necessarily lesser included offense.” Id. at 932. To be clear, in our decision

today we do not recede from Wimberly.

      In the present case, because Knight failed to comply with the

contemporaneous objection rule and because there was no fundamental error, we

affirm the result of the First District’s decision affirming Knight’s conviction.




                                         - 13 -
                                III. CONCLUSION

      We hereby recede from this Court’s precedent where a finding of

fundamental error was predicated on Florida’s jury pardon doctrine. We also

reaffirm the fundamental error rule of Brown v. State, 124 So. 2d 481 (Fla. 1960),

and recede from this Court’s precedent applying the fundamental error analysis of

Stewart v. State, 420 So. 2d 862 (Fla. 1982), outside the context of erroneous jury

instructions on the offense of conviction.

      In this case, we conclude that the trial court’s unobjected-to, erroneous jury

instruction on the lesser included offense of attempted voluntary manslaughter

with a weapon did not constitute fundamental error. Accordingly, we approve the

result of the First District’s decision affirming Knight’s conviction.

      It is so ordered.

CANADY, C.J., and LAWSON and MUÑIZ, JJ., concur.
POLSTON, J., concurs specially with an opinion.
LABARGA, J., dissents with an opinion.

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

POLSTON, J., specially concurring.

      For the reasons expressed in my concurrence in Dean v. State, 230 So. 3d

420 (Fla. 2017), I would approve the result of the First District’s decision affirming

Knight’s conviction. To be clear though, I agree with the majority that there was

no fundamental error in this case. I further agree with receding from this Court’s

                                        - 14 -
decisions regarding a supposed right to a partial jury nullification, which has also

been referred to as the jury pardon doctrine.

LABARGA, J., dissenting.

      For decades, Florida’s trial courts have been required to instruct juries on

necessarily lesser included offenses. Moreover, this Court has repeatedly

reaffirmed the importance of providing juries with correct instructions on

necessarily lesser included offenses that are one step removed from the offense of

conviction. See State v. Montgomery, 39 So. 3d 252, 259 (Fla. 2010); Pena v.

State, 901 So. 2d 781, 787 (Fla. 2005); State v. Abreau, 363 So. 2d 1063, 1064

(Fla. 1978). However, today’s majority opinion upends longstanding precedent

and concludes that the use of an erroneous jury instruction on a necessarily lesser

included offense, one step removed from the offense of conviction, did not

constitute fundamental error because the evidence presented at trial supported the

conviction. The majority opinion does so even though the offense of conviction

was one step removed from an instruction that erroneously required a finding of

intent to cause the death of the victim, and the defendant’s intent was the key issue

in dispute.

      In this Court’s unanimous decision in Montgomery, we explained that “[a]t

trial, the jury must be instructed on category one lesser included offenses.” 39 So.

3d at 259 (emphasis added). A category one or “ ‘necessarily lesser included


                                        - 15 -
offense’ is, as the name implies, a lesser offense that is always included in the

major offense. The trial judge has no discretion in whether to instruct the jury on a

necessarily lesser included offense. Once the judge determines that the offense is a

necessarily lesser included offense, an instruction must be given.” State v.

Wimberly, 498 So. 2d 929, 932 (Fla. 1986).

      A charged offense and any necessarily lesser included offenses are

distinguished from one another by their elements, and incorrect jury instructions

can significantly impair the jury’s ability to distinguish one offense from another.

In this case, the trial court properly determined that attempted voluntary

manslaughter with a weapon was a necessarily lesser included offense of attempted

first-degree premeditated murder with a weapon. However, the incorrect

instruction on attempted voluntary manslaughter with a weapon required a finding

that Knight intended to cause the death of the victim. Knight was entitled to a

correct instruction on this lesser included offense, and the failure to properly

instruct the jury resulted in fundamental error.

      For fundamental error purposes, the proper analysis must look to the

erroneous jury instruction and evaluate its impact on the verdict. Instead, the

majority opinion focuses on whether the evidence supported a conviction for

attempted second-degree murder with a weapon and concludes that Knight’s




                                        - 16 -
entitlement to a correct attempted manslaughter instruction amounts to “an

opportunity for partial jury nullification.” Majority op. at 6.

      This case clearly falls within the scope of our decision in Montgomery,

which recognizes that it is within the province of the jury to serve as the finder of

fact, and pursuant to the instructions given by the court, to determine whether a

charged or lesser included offense has been committed. Montgomery was not

decided in a vacuum. Rather, Montgomery flows from and was decided in a

manner consistent with more than four decades of precedent. In Lomax v. State,

345 So. 2d 719 (Fla. 1977), disapproved in part on other grounds by Abreau, 363

So. 2d at 1064, this Court emphasized the role of the jury in deciding for which

offense a defendant should be convicted. In fact, Lomax rejected the argument

“that the failure to give an instruction of an immediately lesser included offense

may be harmless if there is overwhelming evidence that the appellant committed

the greater crime and the jury could not reasonably have found that only the lesser

crime was committed.” Id. at 720 (quoting Lomax v. State, 322 So. 2d 650, 651

(Fla. 2d DCA 1975)). This Court concluded that the failure to instruct on a

necessarily lesser included offense “invade[s] the province of the jury” and

“successfully takes an important evidentiary matter from the proper province of the

jury.” 345 So. 2d at 721. In Abreau, decided the year after Lomax, this Court

reaffirmed the per se rule governing the instruction on necessarily lesser included


                                        - 17 -
offenses. Although the Court disapproved Lomax, it did so only to the extent that

Lomax suggested that the “failure to instruct on any lesser included offense” was

per se reversible error. Abreau, 363 So. 2d at 1064. Abreau clarified: “[T]he

failure to instruct on the next immediate lesser-included offense (one step

removed) constitutes error that is per se reversible.” Id. Similarly, in the present

case, the requirement of a finding of intent in the attempted voluntary

manslaughter jury instruction is tantamount to a failure to instruct because the

additional element of intent prevented the jury from considering the one step

removed, necessarily lesser included offense, as correctly defined. Because I

continue to conclude that Abreau correctly states the law, and thus, that

fundamental error occurred in this case, I dissent from the majority’s decision to

“recede from precedent” in this area of the law. Majority op. at 6.

      The proper fundamental error inquiry is, where Florida law required a jury

instruction on the necessarily lesser included offense of attempted voluntary

manslaughter with a weapon, could the jury have convicted Knight of that

offense—one step removed from the offense of conviction—had it been properly

instructed? If so, it cannot be said that Knight’s conviction would have been

obtained without the assistance of the erroneous jury instruction. See Pena v.

State, 901 So. 2d at 787 (“If the jury is not properly instructed on the next lower

crime, then it is impossible to determine whether, having been properly instructed,


                                        - 18 -
it would have found the defendant guilty of the next lesser offense.”). Here, the

attempted voluntary manslaughter instruction erroneously required a finding that

Knight intended to cause the death of the victim and was not a mere scrivener’s

error. Rather, the error went directly to what the jury had to consider in order to

convict Knight: whether he intended to cause the death of the victim. Defense

counsel successfully argued the absence of intent, and the jury’s verdict

underscores that it unanimously rejected the State’s argument that Knight intended

to kill the victim.

       I also disagree with the majority’s use of the term “partial jury nullification,”

which suggests that the defendant receives some improper benefit, even where

Florida law requires that the jury be instructed on necessarily lesser included

offenses. The jury’s consideration of lesser included offenses does not work solely

for the benefit of the defendant; it also helps ensure that where a defendant has

committed a crime, but the State is unable to prove the charged offense, the

defendant may yet be held accountable.

       Respectfully, I dissent.

Application for Review of the Decision of the District Court of Appeal – Certified
Great Public Importance/Certified Direct Conflict of Decisions

       First District - Case No. 1D14-2382

       (Okaloosa County)




                                         - 19 -
Andy Thomas, Public Defender, and Glen P. Gifford, Assistant Public Defender,
Second Judicial Circuit, Tallahassee, Florida,

      for Petitioner

Ashley Moody, Attorney General, and Trisha M. Pate, Bureau Chief, and Virginia
Harris, Assistant Attorney General, Tallahassee, Florida,

      for Respondent

Rocco J. Carbone, III, of Law Offices of Rocco J. Carbone, III, St. Augustine,
Florida,

      Amicus Curiae Florida Association of Criminal Defense Lawyers

Carol Stafford Haughwout, Public Defender, and Gary Lee Caldwell, Assistant
Public Defender, Fifteenth Judicial Circuit, West Palm Beach, Florida,

      Amicus Curiae Florida Public Defender Association




                                       - 20 -
