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


                                             IN THE DISTRICT COURT OF APPEAL
                                             OF FLORIDA
                                             SECOND DISTRICT



DONTA DWAYNE SAMS,                           )
                                             )
              Appellant,                     )
                                             )
v.                                           )        Case No. 2D16-2117
                                             )
STATE OF FLORIDA,                            )
                                             )
              Appellee.                      )
                                             )

Opinion filed April 12, 2019.

Appeal from the Circuit Court for Polk
County; Reinaldo Ojeda, Judge.

Howard L. Dimmig, II, Public Defender, and
Cynthia J. Dodge, Assistant Public
Defender, Bartow, for Appellant.

Ashley Moody, Attorney General,
Tallahassee, and Cerese Crawford
Taylor, Assistant Attorney General, Tampa,
for Appellee.



KELLY, Judge.

              Donta Sams was tried before a jury on two charges of attempted first-

degree murder, two counts of child abuse, and one count of shooting into a building.

The jury found him guilty of attempted second-degree murder, child abuse, and

shooting into a building. He appeals from the judgment and sentences entered
pursuant to the jury's verdict. While Sams raises several issues on appeal, we need not

address each one because we conclude his challenge to the jury instructions is

dispositive and requires that we reverse.

              Sams argues the trial court committed fundamental error because the jury

instruction for attempted manslaughter did not exclude justifiable and excusable

homicide from the definition of attempted manslaughter. He also argues it was

fundamental error to omit the introduction to the homicide instruction that defines

justifiable and excusable homicide. Both of these omissions have been held to be

fundamental error and not subject to a harmless error analysis where the defendant is

convicted of manslaughter (or attempted manslaughter) or a greater offense not more

than one step removed. See State v. Spencer, 216 So. 3d 481, 486 (Fla. 2017)

(declining to recede from State v. Lucas, 645 So. 2d 425 (Fla. 1994), "even where there

is nothing in the evidence from which a jury could conclude that a homicide or an

attempted homicide was excusable or justified"); Lucas, 645 So. 2d at 427 (recognizing

that "a complete instruction on manslaughter requires an explanation that justifiable and

excusable homicide are excluded from the crime" and that failure to give the complete

instruction is fundamental error which is not subject to a harmless error analysis where

the defendant has been convicted of manslaughter or a greater offense not more than

one step removed); Armstrong v. State, 579 So. 2d 734, 735 (Fla. 1991) ("Failure to

instruct on justifiable or excusable homicide as it relates to the definition of

manslaughter is reversible error."); Hedges v. State, 172 So. 2d 824, 826 (Fla. 1965)

("[I]n order to supply a complete definition of manslaughter as a degree of unlawful

homicide it is necessary to include also a definition of the exclusions."), receded from on




                                             -2-
other grounds by Weiand v. State, 732 So. 2d 1044 (Fla. 1999); 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. A failure to

give these instructions constitutes fundamental error." (citation omitted)).

              The supreme court has, however, articulated some exceptions to these

general rules. In Armstrong, the court quoted Ray v. State, 403 So. 2d 956, 961 (Fla.

1981), and explained that

              it is not fundamental error to convict a defendant under an
              erroneous lesser included charge when he had an
              opportunity to object to the charge and failed to do so if . . .
              defense counsel requested the improper charge or relied on
              that charge as evidenced by argument to the jury or other
              affirmative action.

579 So. 2d at 735 (alteration in original). Similarly, in Lucas, the court reiterated that the

only exception it had recognized was in cases where counsel "affirmatively agreed to or

requested the incomplete instruction." 645 So. 2d at 427. In Spencer, the court

recognized an additional exception where a defendant "expressly concedes that a

homicide or an attempted homicide is not justified or excusable." 216 So. 3d at 486.

While this additional exception is not applicable here, the question remains as to

whether the exception discussed in Armstrong and Lucas applies here.

              Sams' defense at trial was twofold—he acted in the heat of passion and in

self-defense. Defense counsel actively participated in two charge conferences in which

the trial court went over each instruction individually and discussed them with the State

and defense counsel. At no point in the charge conference is there any discussion of

the introduction to the homicide charge. Instead, during the charge conference,

defense counsel asked the court to include the following language in the instruction for



                                            -3-
attempted first-degree murder: "An issue in this case is whether the Defendant did not

act with a premeditated design to kill because he acted in the heat of passion based on

adequate provocation." The instruction then goes on to explain what the jury must find

to conclude that Sams acted in the heat of passion. Defense counsel also asked that

the charge for attempted second-degree murder include the same language but this

time to explain that heat of passion negates the requirement that Sams act with a

depraved mind regardless of human life. Defense counsel did not ask that the heat of

passion language be added to the attempted manslaughter instruction. He agreed to

have the instruction on the justifiable use of deadly force read at the conclusion of all

the homicide instructions. Defense counsel did not register any objection to the

attempted manslaughter instruction or to the instructions as a whole, although the trial

judge diligently inquired of counsel multiple times as to whether he was satisfied with

the instructions.

              Where counsel has merely acquiesced to jury instructions that do not

provide a full instruction on justifiable or excusable homicide, the exception discussed in

Lucas does not apply. Spencer, 216 So. 3d at 486 (explaining that the district courts,

including this one, have held that where counsel has merely acquiesced to jury

instructions that did not provide a full instruction on justifiable or excusable homicide,

the exception is not applicable). Counsel for Sams did not merely acquiesce—he was

actively involved in shaping the content of the instructions. Nor do we equate his

involvement in shaping the jury instructions as being the equivalent of requesting that

the court give incomplete instructions—at least not in the sense the supreme court has

employed that exception. See, e.g., Armstrong, 579 So. 2d at 735 (explaining that




                                            -4-
counsel requested the limited instruction in order to tailor it to the defense that the killing

was accidental).

              Whether counsel affirmatively agreed to the erroneous instructions is a

closer question. There is no specific discussion regarding the introduction to the

homicide instruction; however counsel did ask the court to include the definitions for

heat of passion and justifiable use of force in the instructions, and the court did as

counsel requested. And while defense counsel affirmatively agreed to the attempted

manslaughter instruction as read, he did not specifically and affirmatively agree to

exclude the required exceptions for justifiable and excusable homicide—he merely

failed to object. In addressing the exception for cases in which counsel affirmatively

agrees to an omission or alteration of a jury instruction, this court stated in Van Loan,

that "[b]efore this exception applies, defense counsel must be aware of the omission,

alteration, or incomplete instruction and affirmatively agree to it." 736 So. 2d at 804.

We also stated that "[t]he trial court shoulders the responsibility to properly instruct the

jury on the definitions of excusable and justifiable homicide." Id. We believe that Van

Loan dictates the conclusion that notwithstanding counsel's actions, the omissions here

amounted to fundamental error. We find this to be the case even though defense

counsel affirmatively agreed to place the justifiable use of force and heat of passion

instructions elsewhere in the jury instructions.

              We acknowledge that the extent to which Armstrong, Lucas, and Spencer

require counsel to agree to an erroneous instruction and whether the record must reflect

that counsel knew the instruction was erroneous has been subject to debate among the

district courts and is presently the subject of a certified question in Knight v. State, 43




                                             -5-
Fla. L. Weekly D404 (Fla. 1st DCA Feb. 19, 2018), review granted, No. SC18-309, 2018

WL 3097727 (Fla. June 25, 2018). Accordingly, we certify the following question:

             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?

             Reversed and remanded.


VILLANTI and LUCAS, JJ., Concur.




                                         -6-
