       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FOURTH DISTRICT

                          CORNELL ROBERTS,
                              Appellant,

                                     v.

                          STATE OF FLORIDA,
                               Appellee.

                              No. 4D17-3877

                               [April 1, 2020]

   Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; William W. Haury, Jr., Judge; L.T. Case No. 16-
003909CF10A.

  Carey Haughwout, Public Defender, and J. Woodson Isom, Assistant
Public Defender, West Palm Beach, for appellant.

   Ashley Moody, Attorney General, Tallahassee, and Jonathan P. Picard,
Assistant Attorney General, West Palm Beach, for appellee.

GROSS, J.

   Due to a change in the law implemented by the Florida Supreme Court,
we withdraw our earlier opinion in this case and affirm the conviction.

    Cornell Roberts was charged with attempted first-degree murder.
Following a jury trial, he was convicted of the lesser included offense of
attempted second-degree murder.          We reversed the conviction and
remanded for a new trial on the State’s concession that “the trial court’s
failure to instruct the jury on the necessarily included offense of attempted
manslaughter by act amounted to fundamental error because that offense
is one step removed from the convicted offense of attempted second degree
murder.” Roberts v. State, 268 So. 3d 147, 147 (Fla. 4th DCA 2018).

   After the opinion issued, the State timely moved to stay issuance of the
mandate pending the resolution of Knight v. State, 267 So. 3d 38 (Fla. 1st
DCA 2018), a case then pending before the Florida Supreme Court. We
granted the motion.
   Last year, the Supreme Court decided Knight v. State, 286 So. 3d 147
(Fla. 2019). Based on that decision, the State urged this court to withdraw
our previous opinion and affirm the defendant’s conviction. The defendant
responded, maintaining that reversal is still appropriate.

                                  FACTS

   Cornell Roberts was charged with attempted first-degree murder. The
jury was given the following instruction:

      3.4 WHEN THERE ARE LESSER INCLUDED CRIMES OR
      ATTEMPTS

      In considering the evidence, you should consider the
      possibility that although the evidence may not convince you
      that the defendant committed the main crime of which he is
      accused, there may be evidence that he committed other acts
      that would constitute a lesser included crime or crimes.
      Therefore, if you decide that the main accusation has not been
      proved beyond a reasonable doubt, you will next need to
      decide if the defendant is guilty of any lesser included crime.

      The lesser crimes indicated in the definition of Attempted
      Murder — First Degree:

         Attempted Murder — Second Degree
         Aggravated Battery

   Defense counsel did not object to the instruction given. The jury found
the defendant guilty of the lesser included offense of Attempted Murder —
Second Degree.

   The jury instructions given were incorrect because attempted
manslaughter by act was not included in the list of lesser included crimes.
Attempted manslaughter by act is one step removed from the offense of
conviction, attempted second-degree murder.

   The sole issue on appeal is whether the trial court committed
fundamental error when it failed to instruct the jury on the lesser included
crime of attempted manslaughter by act.




                                    -2-
                                DISCUSSION

   Whether the trial court committed fundamental error by failing to
instruct the jury on a lesser included offense is a pure question of law
subject to de novo review. Walton v. State, 208 So. 3d 60, 64 (Fla. 2016).

    A criminal defendant is entitled to an accurate instruction on lesser
included offenses. State v. Montgomery, 39 So. 3d 252, 258 (Fla. 2010).
Jury instruction errors are subject to the contemporaneous objection rule.
Knight, 286 So. 3d at 151. This means that in “the absence of a
contemporaneous objection at trial, a jury instruction error is only subject
to relief in the event of fundamental error.” Id. Until recently, the Supreme
Court “repeatedly held that the failure to correctly instruct the jury on a
necessarily lesser included offense constitute[d] fundamental error.”
Walton, 208 So. 3d at 65 (citing Williams v. State, 123 So. 3d 23, 27 (Fla.
2013); Montgomery, 39 So. 3d at 259).             The Court reasoned that
instructions on lesser included offenses allow the jury to exercise its
inherent pardon power. As explained in Pena v. State, 901 So. 2d 781 (Fla.
2005):

      A jury must be given a fair opportunity to exercise its inherent
      “pardon” power by returning a verdict of guilty as to the next
      lower crime. 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.

Id. at 787.

   This case does not involve an improper instruction – it concerns giving
no instruction at all on a necessarily lesser included offense. There was
no contemporaneous objection to the failure to instruct on the lesser
included offense. The Supreme Court discussed the effect of a failure to
give such an instruction in Walton, reasoning that “[i]f giving an incorrect
instruction on a necessarily lesser included offense constitutes
fundamental error, then a fortiori giving no instruction at all likewise
constitutes fundamental error.” Walton, 208 So. 3d at 65.

    When this case was briefed in October 2018, we accepted the State’s
concession of error, and, citing Walton, 208 So. 3d at 64, found that “the
trial court’s failure to instruct the jury on the necessarily included offense
of attempted manslaughter by act amounted to fundamental error because


                                     -3-
that offense is one step removed from the convicted offense of attempted
second degree murder.” Roberts, 268 So. 3d at 147.

   Walton is no longer viable because, in Knight, the Supreme Court
expressly receded from the two cases upon which Walton relied. The
Court held that in those cases its fundamental error analysis erroneously
transformed “the unreviewable pardon power of the jury into a
fundamental right of the defendant.” Knight, 286 So. 3d at 151. The Court
also found that it erred in those cases “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.” Id. The Court
receded from its 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.” Id. at 151-52. The Court
also receded from those “precedents relying on a right of access to a partial
jury nullification as a basis for finding fundamental error in jury
instructions.” Id. at 153. The Court held:

      [T]he 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.

Id. at 151.

   Knight involved the giving of an erroneous instruction on a lesser
included offense.     The issue here, however, is whether it is still
fundamental error for the court to fail to give any instruction on a lesser
included offense. We see no reason that the failure to give an instruction
should be treated differently than the giving of an erroneous instruction in
a fundamental error analysis.

   We agree with the first district that the failure to give an instruction on
a lesser included offense is not fundamental error. See Weaver v. State,
45 Fla. L. Weekly D198 (Fla. 1st DCA Jan. 23, 2020). In Weaver, the
defendant was convicted of sexual battery upon a person less than twelve
years of age and argued that the trial court committed fundamental error
when it failed to give a jury instruction on lewd or lascivious battery, a
lesser included offense. Citing Knight, the first district determined that
there was no fundamental error:

      [T]he Florida Supreme Court recently receded from prior
      precedent and now rejects recognition of a fundamental right

                                     -4-
      to jury instructions that facilitate partial jury nullification.
      Thus, instruction error is no longer considered per se
      reversible. Rather, where there is no error in the jury
      instruction on the offense of conviction, and the evidence
      supports that conviction, the defendant’s judgment must be
      affirmed.

Weaver, 45 Fla. L. Weekly at D199.

   The continued viability of Walton is further undermined because Knight
receded from Haygood v. State, 109 So. 3d 735 (Fla. 2013). Haygood
included a dissent by Justice Canady in which he explained the analytical
problems with the jury pardon doctrine. Id. at 746-52. The Knight
majority quoted Justice Canady’s Haygood dissent at length and cited its
reasoning with approval. Justice Canady also dissented in Walton,
quoting his Haygood dissent. Walton, 208 So. 3d at 70.

    While Knight did not expressly recede from Walton, it receded from both
of the cases upon which Walton relied and adopted the reasoning of Justice
Canady’s dissent in Walton.

   The new rule of law, as recognized in Weaver, is that there is no
fundamental error in jury instructions where “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.” Knight, 286
So. 3d at 151. Applying Knight to this case, there was no fundamental
error in the jury instructions because there was no error in the jury
instruction for the offense of conviction (attempted second-degree murder),
and the evidence at trial was sufficient to support the defendant’s
conviction for that crime.

   We withdraw our prior opinion in this case and affirm the final
judgment of conviction.

MAY and DAMOORGIAN, JJ., concur.

                            *        *         *

   Not final until disposition of timely filed motion for rehearing.




                                    -5-
