         FIRST DISTRICT COURT OF APPEAL
                STATE OF FLORIDA
                 _____________________________

                         No. 1D14-2382
                 _____________________________

ARNOLD JEROME KNIGHT,

    Appellant,

    v.

STATE OF FLORIDA,
    Appellee.
                  ___________________________

On appeal from the Circuit Court for Okaloosa County.
John T. Brown, Judge.

                       February 19, 2018


 ON MOTION FOR REHEARING, CERTIFICATION OF QUESTION,
               AND REHEARING EN BANC

KELSEY, J.

     The Court previously issued its opinion affirming Appellant’s
conviction and sentence for attempted second-degree murder.
Knight v. State, 41 Fla. L. Weekly D1760, 2016 WL 4036091 (Fla.
1st DCA July 28, 2016). Appellant moved for rehearing,
certification of a question of great public importance, and
rehearing en banc. 1 We deny Appellant’s motion, withdraw our


    1  On the Court’s own motion, we requested supplemental
briefing on the “one step removed” analysis of Daughtery v. State,
211 So. 3d 29 (Fla. 2017). While we appreciate both parties’
prior opinion, and in its place substitute the following opinion
affirming Appellant’s conviction and sentence on two alternative
grounds. We certify conflict with Caruthers v. State, 232 So. 3d
441 (Fla. 4th DCA 2017). We also re-certify as a question of great
public importance a question we certified in Moore v. State, 114
So. 3d 486, 489 (Fla. 1st DCA 2013), review dismissed, 181 So. 3d
1186, 1186-87 (Fla. 2016).

                               ***

     Appellant challenges his conviction and thirty-year sentence
for attempted second-degree murder of his former girlfriend. 2 The


submissions on that issue, we conclude that it would not be
determinative.

    2    The crime charged was attempted first-degree
premeditated murder. Appellant also was convicted of violating a
domestic violence injunction, but did not challenge that
conviction or sentence on appeal. These acts occurred while
Appellant was on probation for federal crimes. In the violation of
probation hearing in federal court, he admitted to new law
violations including those for which he had just been convicted in
Florida. United States v. Knight, 604 F. App’x 886, 887, 889
(2015) (noting that Appellant “waived his right to an initial
revocation hearing and admitted the violations as charged in the
amended petition;” and observing “Knight admitted using cocaine
on multiple occasions and committing two crimes, including
attempting to murder his former girlfriend with a steel pipe.”);
Report & Recommendation, Knight v. United States, Nos. 15-
00528-CG-M, 07-00242-CG-M, 2016 WL 1096972, at *2 (S.D. Ala.
Feb. 24, 2016) (quoting Appellant’s written pleading stating that
“I hereby voluntarily waive my statutory right to such a hearing
and admit to the violations set forth in the Petition [including the
Florida convictions].”). The parties stipulated prior to the state
trial that the federal charges and proceedings would not be
presented to the jury. Appellant’s admission to the Florida and
other charges occurred after the notice of appeal was filed in this
case.

                                 2
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 Appellant 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
Appellant 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 Appellant. 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, Appellant
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 Appellant with the weapon in his hand
and confronted him. The victim’s daughter saw Appellant
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
Appellant. The weapon was found to have the victim’s DNA on
both ends and Appellant’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 Appellant had brought it with
him. The presence of the weapon, together with the evidence of
Appellant’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 Appellant had planned the attack in advance.


                                 3
     Appellant did not testify at his trial, but neither the fact of
the attack nor Appellant’s identity as the attacker was disputed.
There was evidence that upon being informed of the charges
including use of a crowbar as a weapon, Appellant 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, Appellant had no intent to kill the victim, and the
evidence was insufficient to establish that Appellant 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.




                                 4
     Appellant argues that the trial court committed fundamental
error by using a jury instruction on the lesser-included crime of
attempted voluntary manslaughter by act that the Florida
Supreme Court had invalidated several years earlier for
incorrectly including an element of intent to kill. State v.
Montgomery, 39 So. 3d 252, 259-60 (Fla. 2010). The erroneous
jury instruction for attempted voluntary manslaughter provided
as follows, with the erroneous language italicized:

        To prove the crime of Attempted Voluntary
    Manslaughter, the State must prove the following
    element beyond a reasonable doubt:

         ARNOLD JEROME KNIGHT committed an act or
    procured the commission of an act, which was intended
    to cause the death of [VICTIM] and would have resulted
    in the death of [VICTIM] except that someone prevented
    ARNOLD JEROME KNIGHT from killing [VICTIM] or
    he failed to do so.

         However, the defendant cannot be guilty of
    Attempted Voluntary Manslaughter if the attempted
    killing was either excusable or justifiable as I have
    previously explained those terms.

         It is not an attempt to commit manslaughter if the
    defendant abandoned the attempt to commit the offense
    or otherwise prevented its commission under
    circumstances indicating a complete and voluntary
    renunciation of his criminal purpose.

        To “procure” means to persuade, induce, prevail
    upon, or cause a person to do something.

        In order to convict of Attempted Voluntary
    Manslaughter it is not necessary for the State to prove
    that the defendant had a premeditated intent to cause
    death.



                               5
     The Florida Supreme Court held in Montgomery that this
standard instruction was erroneous for including the element of
intent to kill; and further held that the last line of the
instruction, stating it is not necessary to prove premeditated
intent to kill, was insufficient to cure the error. 39 So. 3d at 257–
58. By the time the Montgomery opinion was rendered, the
supreme court had approved a corrected jury instruction on
manslaughter by act, which added that “it is not necessary for the
State to prove that the defendant had a premeditated intent to
cause death, only an intent to commit an act which caused death.”
Id. at 257 (quoting In re Standard Jury Instructions in Criminal
Cases–Report No. 2007-10, 997 So. 2d 403, 403 (Fla. 2008)).

     The Florida Supreme Court further held in Montgomery
that—because of the jury pardon doctrine—the use of an incorrect
manslaughter by act instruction is fundamental error, and “per
se reversible,” 3 if the defendant is convicted of second-degree
murder (and by extension, attempted second-degree murder), a
crime only one step above manslaughter. Id. at 259–60 (“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.”) (quoting Pena v. State, 901 So. 2d 781, 787 (Fla.
2005)).

    In part I of this opinion we find that the Florida Supreme
Court recently receded from the jury pardon doctrine. Dean v.
State, 230 So. 3d 420, 425 (Fla. 2017). 4 That change in the law

    3 Fundamental error need not be preserved and is not subject
to harmless error analysis, so is “per se reversible.” However, not
all per se reversible error is fundamental. Non-fundamental per
se reversible error must be preserved and analyzed for harmless
error. See Johnson v. State, 53 So. 3d 1003, 1007 n.5 (Fla. 2010).

    4 We also requested supplemental briefing on Dean, and
thank the parties for their analysis.

                                 6
eliminates the rationale for the fundamental error analysis of
Montgomery. We therefore conclude in part I of this opinion that
the use of an erroneous manslaughter instruction does not
constitute reversible error on the facts presented. We certify
conflict with Caruthers, which held that the Florida Supreme
Court did not recede from the jury pardon doctrine in Dean.

    In part II of this opinion, we adhere to our previous holding
that this error can be waived and was waived on the specific facts
presented. We thus affirm Appellant’s conviction and sentence on
this alternative ground. We re-certify as a question of great
public importance a question we certified in Moore, 114 So. 3d at
493, review dismissed, 181 So. 3d at 1186-87.

I.   ABROGATION OF THE JURY PARDON DOCTRINE.

     In Dean, the defendant was charged with second-degree
felony murder and requested that the jury be instructed on
manslaughter as a lesser-included offense. 230 So. 3d at 421–22.
The trial court agreed with the state that manslaughter was not
a lesser-included offense of second-degree felony murder, and
decided not to instruct the jury on manslaughter. Id. The Fourth
District held that manslaughter is not a necessary lesser-
included offense of second-degree felony murder, but certified the
question to the Florida Supreme Court. Id. at 422. The supreme
court declared in its per curiam opinion that manslaughter was a
necessary lesser-included offense of second-degree felony murder.
Id. at 422–24. Not giving the manslaughter instruction would
have constituted fundamental error, see Montgomery, 39 So. 3d at
258; which is not subject to harmless error analysis, Reed v.
State, 837 So. 2d 366, 369-70 (Fla. 2002).

     Dean generated four opinions. Justices Lewis, Canady, and
Lawson joined the per curiam opinion affirming Dean’s
conviction. The per curiam opinion expressly incorporated by
reference the reasons set forth in Justice Polston’s concurring
opinion, joined by Justices Canady and Lawson, which receded




                                7
from the jury pardon doctrine. 5 Thus, a majority consisting of
four justices—Justices Lewis, Canady, Polston, and Lawson—
concurred in the abrogation of the jury pardon doctrine. Both
Justices Pariente and Quince recognized in their respective
separate opinions that the majority of the court had abrogated
the jury pardon doctrine. 6 The petitioner in Dean moved for
rehearing, arguing that the court should not have abrogated the
jury pardon doctrine without at least allowing supplemental
briefing on the issue. The State argued in its response that the
court properly applied a harmless error analysis. 7 The court
denied rehearing and issued mandate. We thus must conclude
that the Florida Supreme Court has abrogated the jury pardon
doctrine. We recognize that the Fourth District in Caruthers
concluded to the contrary, and we certify conflict with Caruthers.

     The supreme court majority’s grounds for abrogating the jury
pardon doctrine are ably set out in Justice Polston’s concurring
opinion in Dean. 230 So. 3d at 425–26 (Polston, J., concurring).
We will not repeat the court’s reasoning here. See also, e.g.,
Haygood v. State, 109 So. 3d 735, 749 (Fla. 2013) (Canady, J.,
dissenting) (“Nothing in the Florida Constitution, the Florida
Statutes, or the Florida Rules of Criminal Procedure supports our
recognition of such a right of access to a partial jury
nullification.”); Sanders v. State, 946 So. 2d 953, 958 (Fla. 2006)
(recognizing that a jury pardon is “essentially ‘a not guilty verdict
rendered contrary to the law and evidence’ and is an

    5  The per curiam opinion also adopted the reasoning of
Justice Quince’s opinion, the only part of which can be
harmonized with the per curiam opinion is her noting that the
court had receded from the jury pardon doctrine.

    6 In the reported decision, Justice Labarga is identified as
the judge who presided over the trial below. He was recused from
the supreme court proceedings.

    7 Petitioner’s Motion for Rehearing at 3-4, and Respondent
State’s Response to Motion for Rehearing at 1-2, Dean, 230 So. 3d
420 (No. SC16-1314).

                                 8
aberration.”). Dean applies to this case. See Smith v. State, 598
So. 2d 1063, 1066 (Fla. 1992) (“Thus, we hold that any decision of
this Court announcing a new rule of law, or merely applying an
established rule of law to a new or different factual situation,
must be given retrospective application by the courts of this state
in every case pending on direct review or not yet final.”).

    Because the error here was not preserved, we could affirm
without further discussion. However, the Dean court applied a
harmless error analysis, agreeing with Justice Polston’s
observation that even the failure to give a requested instruction
on a necessarily lesser-included offense is harmless “because the
defendant is not entitled to an opportunity for a jury pardon.”
Dean, 230 So. 3d at 426. Applying the same reasoning, the giving
of the instruction for attempted manslaughter by act deemed
erroneous under Montgomery is harmless error. The evidence
adduced below strongly supports that conclusion.

     The jurors here were correctly instructed that “If you return
a verdict of guilty, it should be for the highest offense which has
been proven beyond a reasonable doubt.” Fla. Std. Jury Instr.
(Crim.) 3.12. The jurors were correctly instructed that attempted
second-degree murder involved intentional commitment “of an
act which would have resulted in the death of [victim].” The
instruction for attempted second-degree murder also correctly
noted that “it is not necessary for the State to prove the
defendant had an intent to cause death.”

     Appellant’s counsel did not challenge identity or the fact of
the attack, but argued lack of intent to kill, lack of premeditation,
and no use of a weapon. The jury received evidence that could
support a finding of intent to kill in the victim’s testimony that
Appellant had previously threatened to kill her if she left him,
and in the brutality of Appellant’s attack. The jury received
evidence of premeditation in the timing of the attack as a
response to the domestic violence injunction, in Appellant’s
traveling to the victim’s house in spite of the injunction and
timing his arrival to coincide with a part of her known routine
that left her alone and vulnerable, and in his bringing a jack


                                 9
handle with him for the attack. The jury received evidence that
the jack handle bore the DNA of both Appellant and his victim,
improbable beyond staggering odds unless Appellant had, in fact,
beaten the victim with the jack handle. Appellant’s counsel
nevertheless succeeded in persuading the jury not to return a
verdict for the crime charged, attempted first-degree
premeditated murder. Appellant has already avoided a life
sentence by the jury’s finding of guilt as to attempted second-
degree murder with a weapon, without intent to kill. The
evidence very strongly supports the offense of conviction. We
affirm Appellant’s conviction and sentence.

II. WAIVER.

     As noted above, even if the Florida Supreme Court had not
abrogated the jury pardon doctrine, we would adhere to our
original holding that the giving of the jury instruction held to be
erroneous in Montgomery is an error that can be waived, and that
it was waived on the specific facts presented here. We emphasize
that our waiver analysis is limited to the specific factors at play
here. These factors include 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 several years 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.

         A.   The Error: Intent To Kill Is Not An
              Element Of Manslaughter.

     The erroneous jury instruction used in this case had been
invalidated several years before this trial occurred; and while we
do not hold that the passage of time alone can create a waiver of
objection to an erroneous instruction, we find that it is one among
several factors that are appropriately considered. The Florida
Supreme Court held in 2010—nearly four years before the trial in


                                10
this case—that the standard jury instruction then in effect for
voluntary manslaughter by act erroneously included an element
of intent to kill, by instructing that the defendant must have
committed an act or procured the commission of an act that was
“intended to cause the death” of the victim. Montgomery, 39 So.
3d at 259-60 (approving this Court’s 2009 decision reaching the
same conclusion, Montgomery v. State, 70 So. 3d 603 (Fla. 1st
DCA 2009)). After Montgomery, the supreme court issued a new
interim manslaughter instruction that eliminated the erroneous
reference to an intent to kill, instead stating that the jury must
find the defendant “intentionally committed an act or acts that
caused the death of” the victim. In re Amendments to Standard
Jury Instructions in Criminal Cases--Instruction 7.7, 41 So. 3d
853, 854-55 (Fla. 2010). 8

     Although Montgomery involved completed rather than
attempted voluntary manslaughter by act, the correct instruction
for the attempted crime obviously also would not include intent to
kill because the distinction between completed and attempted
manslaughter is not a difference in the elements of manslaughter
but only a difference in whether the crime was prevented or
otherwise failed to reach completion. See § 777.04(1), Fla. Stat.
(2014) (“A person who attempts to commit an offense prohibited
by law and in such attempt does any act toward the commission
of such offense, but fails in the perpetration or is intercepted or
prevented in the execution thereof, commits the offense of
criminal attempt . . . .”). Thus, the proper instruction for
attempted voluntary manslaughter by act was settled in
Montgomery as well, by this Court in 2009, and affirmed by the
Florida Supreme Court in 2010. Montgomery, 70 So. 3d at 607,
aff’d, 39 So. 3d at 259-60.



    8  The supreme court issued an amended manslaughter
instruction in 2011 clarifying that it requires an intentional act
not constituting negligence, but that amendment to the
instruction is not at issue here. In re Amendments to Standard
Jury Instructions in Criminal Cases--Instruction 7.7, 75 So. 3d
210, 211 (Fla. 2011).

                                11
     Even if there had been any doubt about the correct
instruction for attempted voluntary manslaughter by act, we had
made it clear by 2009 in Lamb v. State, 18 So. 3d 734 (Fla. 1st
DCA 2009). In Lamb, we held that an instruction including intent
to kill was erroneous also as to attempted manslaughter by act.
18 So. 3d at 735. On review of our decision in Lamb based on
conflict with a decision of the Fourth District Court of Appeal, the
Florida Supreme Court approved Lamb and held that it was
fundamental error to instruct a jury that attempted
manslaughter by act requires intent to kill. Williams v. State, 123
So. 3d 23, 30 (Fla. 2013).

      In spite of these developments in the law that occurred as
many as five years before the trial below, the manslaughter jury
instruction used here retained the incorrect element of intent to
kill. It was virtually identical to that disapproved in Williams,
which stated “[Defendant] ‘committed an act which was intended
to cause the death’ of [Victim].” 123 So. 3d at 25 (emphasis added)
(quoting Lamb, 18 So. 3d at 735). The jury instruction here also
was substantively the same as that disapproved in Montgomery,
which included the element that “(Defendant) intentionally
caused the death of (victim).” Montgomery, 39 So. 3d at 256. This
jury instruction clearly was erroneous. The giving of this
erroneous jury instruction constituted fundamental error under
prior supreme court precedent. Williams, 123 So. 3d at 25, 27;
Montgomery, 39 So. 3d at 258.

         B.   The Fundamental Error Was Waived.

     Fundamental error in a jury instruction can be waived. The
Florida Supreme Court has held that “objecting to erroneous
instructions is the responsibility of a defendant’s attorney, and
the attorney’s failure to object to such instructions can properly
constitute a waiver of any defects.” Ray v. State, 403 So. 2d 956,
961 (Fla. 1981). See also, e.g., Moore, 114 So. 3d at 489, review
dismissed, 181 So. 3d at 1186-87 (finding waiver as to erroneous
manslaughter instruction where defense counsel affirmatively
agreed to it in spite of having been expressly advised of the
Montgomery decision). It is axiomatic that waiver “is the


                                12
voluntary and intentional relinquishment of a known right, or
conduct which implies the voluntary and intentional
relinquishment of a known right.” Major League Baseball v.
Morsani, 790 So. 2d 1071, 1077 n.12 (Fla. 2001). The existence of
a waiver in a given context is a question of fact. Hill v. Ray
Carter Auto Sales, Inc., 745 So. 2d 1136, 1138 (Fla. 1st DCA
1999).

     In Moore, we certified a question of great public importance
as to what facts will constitute a waiver of an erroneous jury
instruction, but the supreme court declined to review our
decision. Moore, 181 So. 3d at 1186-87. We must, therefore,
continue to resolve the question of waiver on a case-by-case basis
in light of the specific facts and the totality of circumstances of
each case. These circumstances here include (1) the existence of a
plausible tactical reason for allowing the erroneous instruction to
go to the jury; (2) the long time that had passed since the jury
instruction had been invalidated; and (3) defense counsel’s
conduct including his express representation that he had read the
jury instructions and had no objections to them; and his
substantial involvement in formulating, revising, and approving
the jury instructions as a whole after discussion before trial,
before closing arguments, and after closing arguments. We hold
that on the totality of circumstances presented here, the error in
the manslaughter jury instruction was waived.

            (1) The Law Will Not Incentivize Error.

     Very significant to our analysis is the existence of a plausible
strategic reason for allowing the erroneous instruction to go to
the jury. Our extension of Moore to find a waiver on these facts
and circumstances is informed in significant part by the
importance of avoiding situations that incentivize defense counsel
to commit error. We have observed that asserting the
fundamental error argument against an unobjected-to jury
instruction creates a “bizarre incentive” for defense counsel to
allow erroneous instructions to go to the jury:




                                 13
         To reverse under these facts would guarantee a
    defendant a new trial anytime there was any error in an
    instruction. The consequence of such a rule would
    essentially obligate a defense attorney to stand mute
    and, if necessary, agree to an erroneous instruction . . . .
    In fact, under such precedent, an attorney who brings a
    faulty jury instruction to the court’s attention or refuses
    to agree to an instruction that misstates the law would
    sacrifice his client’s opportunity for a second trial and
    would risk being found incompetent as a consequence.

Calloway v. State, 37 So. 3d 891, 896-97 (Fla. 1st DCA), review
denied, 51 So. 3d 1154 (Fla. 2010); see also Joyner v. State, 41 So.
3d 306, 307 (Fla. 1st DCA 2010) (“Encouraging counsel to invite
such error subverts the trial process and is counter to the
interests of justice.”); Facin v. State, 188 So. 3d 859, 862 (Fla. 1st
DCA 2015) (repeating concerns of Calloway and Joyner and
deferring ineffective assistance of counsel claim to post-conviction
proceedings because “[w]e cannot say with confidence there is no
conceivable tactical explanation for the conduct of [defendant’s]
trial counsel” in allowing erroneous instruction to go to the jury).

     Reviewing courts should not countenance counsel’s tactical
inaction. See Morales v. State, 170 So. 3d 63, 67 (Fla. 1st DCA
2015) (allowing courts to consider claims of ineffective assistance
of counsel on direct appeal only in those rare cases where there is
“an inconceivable tactical explanation for the conduct”). We will
not promote the possibility of “deliberate sandbagging.” Ferry v.
State, 507 So. 2d 1373, 1375 (Fla. 1987) (finding a valid waiver of
defendant’s right to participate in jury selection when he
voluntarily left the room). To protect against tactical
manipulation of the legal system, we cannot take an overly
narrow view of what constitutes a waiver of a fundamentally
erroneous jury instruction. We have no indication from the
Florida Supreme Court that it intended such consequences in its
cases dealing with jury instruction error.




                                 14
            (2) The Law Was Well Settled.

     It is also significant to our analysis that by the time this case
came to trial in February of 2014, our decision in Montgomery
was five years old, and Lamb was rendered only a few months
after Montgomery. The Florida Supreme Court’s decision
approving our decision in Montgomery was four years old. The
supreme court’s amended jury instruction was likewise four years
old. In re Amendments, 41 So. 3d at 854-55. The supreme court’s
decision in Williams was sixteen months old.

     It is difficult to believe that defense counsel was unaware of
these five-year-old changes in the law directly relevant to his
practice. He was obligated to stay abreast of developments in his
practice area and was chargeable with knowledge of Montgomery
and Williams. 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.”), and cmt. (“Maintaining competence. To
maintain the requisite knowledge and skill, a lawyer should keep
abreast of changes in the law and its practice, engage in
continuing study and education, . . . and comply with all
continuing legal education requirements to which the lawyer is
subject.”); see also Johnson v. State, 796 So. 2d 1227, 1228–29
(Fla. 4th DCA 2001) (“A reasonably effective criminal defense
attorney must keep himself or herself informed of significant
developments in the criminal law . . . .”) (cited in Monroe v. State,
191 So. 3d 395, 404 n.7 (Fla. 2016) (noting that defense counsel
should have been aware of decision rendered two years prior to
the trial at issue)). Taken together, the passage of time since the
instruction was invalidated, coupled with counsel’s obligation to
stay abreast of that important development in the law and his
failure to object, support the conclusion that the objection is
deemed waived. Ray, 403 So. 2d at 961.




                                 15
            (3) Counsel’s Approval and Involvement.

     Defense counsel’s active involvement in developing the jury
instructions also supports our finding of waiver. Although
Appellant trivializes his counsel’s involvement in development of
the final instructions, counsel’s involvement went well beyond
the superficial. This was not a situation of a word or phrase
missing from an instruction that could be overlooked easily, nor
was it a situation where both sides superficially agreed to the
proposed instructions and never revisited them. Rather, the
entire incorrect instruction was present from the beginning, and
the record reflects that counsel was actively, repeatedly involved
in reviewing and revising the instructions multiple times from
before the trial through submission of the case to the jury.
Counsel for both parties had discussed jury instructions before
the charge conference and had agreed on some changes. Defense
counsel asserted at the beginning of trial that he had read and
had no objections to the jury instructions. As the discussion
developed, he requested changes and additions, adding three
lesser battery offenses to the instructions and verdict form, and
thereby gave the jury plenty of opportunities to exercise its
pardon power if it was inclined to do so. He consulted with his
client, and made a stipulation to obtain instructions on more
favorable lesser offenses.

    During a recess after the state rested, the parties placed on
the record additional changes to the jury instructions discussed
between counsel with respect to the instruction for aggravated
battery and the definition of a weapon for the weapon
aggravation instruction, specifically including the voluntary
manslaughter instruction. Defense counsel agreed to have the
court read the instructions to the jury before closing arguments.
No other discussion focused on the manslaughter instruction in
general or specifically on the erroneous intent-to-kill language in
that instruction.

     The court orally instructed the jury prior to closing
arguments, without objection from either party. The court
instructed the jury on the original charge of attempted first-


                                16
degree premeditated murder with a weapon, and on eight lesser
offenses: attempted first-degree premeditated murder, attempted
second-degree murder with a weapon, attempted second-degree
murder, attempted voluntary manslaughter with a weapon,
attempted voluntary manslaughter, aggravated battery with a
deadly weapon or great bodily harm, felony battery with great
bodily harm, and battery.

     Closing arguments focused on the charged crime of
attempted first-degree premeditated murder, with the state
arguing among other things that intent to kill was obvious from
the evidence including the nature and severity of the victim’s
injuries. Defense counsel argued several times that the evidence
did not prove Appellant intended to kill the victim. After closing
arguments, the trial court called to counsels’ attention several
discrepancies where the instructions did not list all lesser-
included offenses, and the court proposed to instruct the jury to
note those instances and refer to the verdict form for complete
information. Defense counsel agreed with the proposal. The jury
returned a verdict finding Appellant guilty of attempted
second-degree murder with a weapon. Defense counsel polled the
jury, which confirmed its verdict.

     The parties dispute whether these facts support a finding
that defense counsel waived the error in the manslaughter
instruction. Neither Montgomery nor Williams addressed the
question of whether the fundamental error in giving the improper
jury instructions was waived. This Court in Moore addressed
waiver of the specific erroneous jury instruction at issue here.
114 So. 3d at 489-90. Moore involved two errors in an instruction
on manslaughter as a lesser-included offense, including its use of
the erroneous requirement that the state prove intent to kill. Id.
at 488-89. We refused to grant a new trial due to the erroneous
intent element in the jury instruction, finding on the facts of
Moore that counsel waived the error. The trial court and
prosecutor in Moore expressly raised the inclusion of the intent
language as a possible error, to which defense counsel did not
respond; but they ended up agreeing to use the standard
instruction from 2008, which did include the intent language. The


                               17
court read the instruction out loud and defense counsel agreed
with it, declining to add anything to it. The instructions were
given with no objections.

     On our review of Moore’s direct appeal, we concluded that
the facts established a waiver of the fundamental error arising
from including the element of intent in the manslaughter
instruction. Moore, 114 So. 3d at 489. Of 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 (albeit an outdated version, which no one
mentioned). See also Joyner, 41 So. 3d at 307 (finding waiver
where counsel specifically agreed with the erroneous instruction
for manslaughter by act, and referenced it in his closing
argument). More recently, we found a waiver of this same jury
instruction error where defense counsel agreed to the instruction
at the charging conference and declined to challenge the
language though he had several opportunities to do so, and the
parties discussed Montgomery. Facin, 188 So. 3d at 860-61,
review denied, No. SC15-1234, 2016 WL 3002446 (Fla. May 25,
2016). In Moore, Joyner, and Facin, then, the error in the
manslaughter jury instruction was addressed expressly, making
a clear case for waiver at one end of the factual spectrum.

     We do not, however, construe our holdings in these cases as
limited to their specific facts; and specifically we do not hold that
a waiver results only when the record expressly reflects that
defense counsel was aware of Montgomery or Williams and still
failed or refused to object to the jury instruction. Other facts may
suffice to demonstrate a waiver, and we find the facts and
circumstances of this case demonstrated a waiver. We are aware
that as a general rule a waiver will not result from mere
ignorance or unknowing acquiescence, but we find that more than
mere unknowing acquiescence occurred here.

    We note again that the Florida Supreme Court declined to
address these issues on review of our decision in Moore, instead
discharging jurisdiction after briefing and oral argument even


                                 18
though the briefs and argument raised these and related issues.
181 So. 3d at 1186-87. While we do not hold that mere inaction
suffices to constitute a waiver, we also refuse to go so far as to
require facts equaling or approaching those of Moore before
finding a waiver. On the facts of this case, we find that defense
counsel waived the fundamental error in the improper jury
instruction for manslaughter, and therefore we affirm Appellant’s
conviction and sentence on this alternative basis.

III. CERTIFIED CONFLICT.

     We certify conflict with Caruthers v. State, 232 So. 3d 441
(Fla. 4th DCA 2017).

IV. CERTIFIED QUESTION OF GREAT PUBLIC IMPORTANCE.

    We ask the Florida Supreme Court to resolve the following
question, which we certify is of great public importance:

    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 PORTION
    OF THE INSTRUCTION THAT IS ERROR AND/OR TO BE AWARE
    THAT THE INSTRUCTION IS ERRONEOUS?

See Moore, 114 So. 3d at 493 (certifying same question).

    AFFIRMED; CONFLICT CERTIFIED; QUESTION OF GREAT PUBLIC
IMPORTANCE CERTIFIED.

WETHERELL, J., concurs; WOLF, J., concurs in part and dissents in
part with opinion.




                               19
                 _____________________________

    Not final until disposition of any timely and
    authorized motion under Fla. R. App. P. 9.330 or
    9.331.
               _____________________________


WOLF, J., concurring in part and dissenting in part.

     I concur fully in part I of the majority opinion and would
affirm on that basis. I also concur in part III of the majority
opinion, which certifies conflict with the Fourth District case of
Caruthers v. State, 232 So. 3d 441 (Fla. 4th DCA 2017).

     I dissent from part II of the majority opinion for the reasons
stated in my dissenting opinion in Knight v. State, 41 Fla. L.
Weekly D1760 (Fla. 1st DCA Jul. 28, 2016). The text of that
opinion with updated citations follows.

     I respectfully dissent because I would find there was no
waiver of the fundamental error contained in the jury
instructions. The majority holds that defense counsel’s
participation in discussions and drafting of instructions other
than the instruction at issue, coupled with an imputed knowledge
of the law concerning the defective instruction, constituted a
waiver of the fundamental error. That conflicts with all existing
case law generally concerning the concept of waiver and
specifically pertaining to waiver of fundamental error contained
in a jury instruction.

     The majority correctly points out that waiver “is the
voluntary and intentional relinquishment of a known right,
or conduct which implies the voluntary and intentional
relinquishment of a known right.” Major League Baseball v.
Morsani, 790 So. 2d 1071, 1077 n.12 (Fla. 2001) (emphasis
added). In the context of jury instruction, a “record . . . [that]
reflects nothing more than unknowing acquiescence” is
insufficient to show waiver of fundamental error. Williams v.
State, 145 So. 3d 997, 1003 (Fla. 1st DCA 2014). See also


                                20
Swearingden v. State, 213 So. 3d 370 (Fla. 1st DCA 2015)
(“because the record does not reflect that he specifically requested
or affirmatively agreed to the challenged portions of the
instructions, he did not waive the issue for appeal”); Burns v.
State, 170 So. 3d 90, 94 n.3 (Fla. 1st DCA 2015) (“The record . . .
reflects nothing more than . . . unknowing acquiescence” by
agreeing generally to the jury instructions as proposed, which
“falls far short of an affirmative agreement” necessary to waive
fundamental error); Moore v. State, 114 So. 3d 486, 492-93 (Fla.
1st DCA 2013) (finding no waiver of fundamental error where
there was not “any indication that counsel was alerted to the fact
the instruction was incomplete”); Black v. State, 695 So. 2d 459,
461 (Fla. 1st DCA 1997) (finding in order for counsel to waive the
fundamental error of failing to instruct on justifiable or excusable
homicide, “defense counsel must be aware that an incorrect
instruction is being read and must affirmatively agree to, or
request, the incomplete instruction”).

     Here, as in Williams, 145 So. 3d at 1003, the record reflects
nothing more than unknowing acquiescence. The majority’s
decision to presume that defense counsel in this case was aware
of the specific legal issue implicated in State v. Montgomery, 39
So. 3d 252 (Fla. 2010), simply because counsel was a criminal
attorney is contrary to the well-established precedent cited above
which holds that it must be clear from the face of the record that
counsel knowingly and affirmatively agreed to the erroneous
instruction. To presume that all criminal defense attorneys are
actively aware of and contemplating all well-settled criminal law
at all times during trial would essentially presume that all
fundamental error is waived. Thus, I dissent.

                 _____________________________


Andy Thomas, Public Defender, Glen P. Gifford, Assistant Public
Defender, and Steven L. Seliger, Assistant Public Defender,
Tallahassee, for Appellant.




                                21
Pamela Jo Bondi, Attorney General, Kaitlin Weiss, Assistant
Attorney General, and Virginia Harris, Assistant Attorney
General, Tallahassee, for Appellee.

                 _____________________________


         ORDER ON MOTION FOR REHEARING EN BANC

    A judge of this Court requested that this cause be reheard en
banc in accordance with Florida Rule of Appellate Procedure
9.331(d). All judges in regular active service have voted on the
request. Less than a majority of those judges voted in favor of
rehearing en banc. Accordingly, the request for rehearing en
banc is denied.

WOLF, LEWIS, ROBERTS, WETHERELL, ROWE, OSTERHAUS,
KELSEY, WINOKUR, WINSOR, and M.K. THOMAS, JJ., concur.

B.L. THOMAS, C.J., concurs with opinion.

RAY, BILBREY, and JAY, JJ., dissent.

MAKAR, J., dissents with opinion.

                 _____________________________

B.L. THOMAS, C.J., concurring in the denial of rehearing en banc.

     In my view, Appellant should not be entitled to a new trial,
solely because Appellant’s attorney failed to inform the trial court
that its proposed jury instruction was erroneous under well-
established precedent. In its alternative holding, the majority
opinion properly addresses the underlying “bizarre incentive” this
court discussed in Calloway v. State, 37 So. 3d 891, 896-97 (Fla.
1st DCA 2010), rev. denied, 51 So. 3d 1154 (Fla. 2010), in cases
such as this. Unjustified retrials of criminal cases impose pain
and suffering on crime victims and their families, who must
unnecessarily undergo the trauma of another jury trial, along


                                22
with the decrease of public confidence in the administration of
justice. Forty years ago, the Florida Supreme Court emphasized
the critical importance of the contemporaneous-objection rule:

    The requirement of a contemporaneous objection is
    based on practical necessity and basic fairness in the
    operation of a judicial system. It places the trial judge
    on notice that error may have been committed, and
    provides [the judge] an opportunity to correct it at an
    early stage of the proceedings. Delay and an
    unnecessary use of the appellate process result from a
    failure to cure early that which must be cured
    eventually.

Castor v. State, 365 So. 2d 701, 703 (Fla. 1978) (emphasis added).
The wisdom of this decision is just as valid today. Thus, I concur
in the decision to deny rehearing en banc in this case.

                 _____________________________

MAKAR, J., dissenting from the denial of rehearing en banc.

     Criminal defense lawyers take heed: you may have thought
that a waiver of your client’s known rights required that you
voluntarily and intentionally relinquish them or engaged in
conduct that implied such a waiver because, after all, that has
been the well-worn, long-accepted legal standard. No longer. Now
your mere participation in the jury instructions process is
sufficient to imply, according to the panel majority, the waiver of
any fundamentally erroneous instruction contained therein; that
is so even if no one—neither you, the prosecutor, nor the trial
judge—knew of or was made aware of the error, transforming
what had been known as “unknowing acquiescence”—which
precedent says is not a waiver—into a voluntary and intentional
abandonment of your client’s rights.

    As Judge Wolf’s dissent explains, the panel’s decision
formulates an entirely new approach to implied waiver that
cannot be reconciled with our precedent, making this case per se


                                23
en banc-worthy, notwithstanding the original en banc motion
garnering one-third of the Court’s support and a renewed motion
on the panel’s revised opinion slightly less. As in its original
opinion, Knight v. State (Knight I), No. 1D14-2382, 2017 WL
4036091, at *1 (Fla. 1st DCA July 28, 2016), the panel majority
adheres to the correctness of its new standard for implied waiver
of a fundamentally erroneous jury instruction. Knight v. State
(Knight II), 1D14-2382, slip op. at 10 (“adher[ing] to our original
holding” as to waiver). As the primary dissent does, this dissental
addresses why the newly-crafted standard for implied waiver is
inconsistent with precedent, thereby making en banc review
necessary on this issue. 1

    1
      Knight II passes upon the previously-raised waiver issue as
well as a new issue raised by the panel as to the jury pardon
doctrine, affirming Knight’s conviction and sentence on those
“two alternative grounds.” Knight II, slip. op. at 2. This dissental
addresses only one of these grounds: the waiver issue, which was
the subject of motions for rehearing en banc in 2016 and 2018.
The alternative ground for affirmance, under the jury pardon
doctrine, is newly issued and has not been subject to rehearing or
rehearing en banc. Either of the alternative grounds are properly
subject to en banc review because “[w]hen the record presents
several questions, and the court considers and deliberately
decides each one, the case is precedential for them all. Both of
two or more explicitly alternative holdings count as holdings-not
as dicta.” BRYAN GARNER ET. AL., THE LAW OF JUDICIAL
PRECEDENT 115 (2016) (Chapter 10. “Multiple questions
decided”). Absent this well-accepted principle, an “entire opinion
[with alternative holdings] becomes nonbinding dicta.” Id. at 124.
Plus, courts have long held that alternative holdings are
precedential. See Woods v. Interstate Realty Co., 337 U.S. 535,
537 (1949) (“But where a decision rests on two or more grounds,
none can be relegated to the category of obiter dictum.”);
Richmond Screw Anchor Co. v. United States, 275 U.S. 331, 340
(1928) (“It does not make a reason given for a conclusion in a case
obiter dictum, because it is only one of two reasons for the same
conclusion.”); Clemons v. Flagler Hosp., Inc., 385 So. 2d 1134,
1136 n.4 (Fla. 5th DCA 1980) (stating that the holding “is

                                24
     To begin, everyone agrees that precedent requires that
waiver be demonstrated by facts establishing “the voluntary and
intentional relinquishment of a known right, or conduct which
implies the voluntary and intentional relinquishment of a known
right.” Major League Baseball v. Morsani, 790 So. 2d 1071, 1077
n.12 (Fla. 2001). Likewise, precedent states that neither the
failure of defense counsel to lodge an objection to a fundamentally
erroneous jury instruction nor his “unknowing acquiescence” in
such an instruction amounts to a waiver of his client’s right. See
Moore v. State, 114 So. 3d 486, 493 (Fla. 1st DCA 2013), rev.
granted, 168 So. 3d 229 (Fla. 2014), dismissed, 181 So. 3d 1186
(Fla. 2016); Burns v. State, 170 So. 3d 90, 94 n.3 (Fla. 1st DCA
2015). Moreover, everyone agrees—including the State—that one
of the jury instructions given in this case was erroneous and
constituted fundamental error under State v. Montgomery, 39 So.
3d 252, 259 (Fla. 2010) and Williams v. State, 123 So. 3d 23, 30
(Fla. 2013). 2

     Yet the majority finds waiver of the defendant’s right to
assert this fundamental error on appeal solely by conjecture
arising from (a) his trial lawyer’s general participation in the


authoritative on the point notwithstanding that the court also
relied on another ground for its decision”). Because the waiver
portion of this case will be precedential and will be relied upon by
courts and practitioners, it remains an appropriate subject of en
banc review.

    2 In Knight I, the majority said the “giving of this erroneous
jury instruction constituted fundamental error.” 2017 WL
4036091, at *2 (citing Montgomery and Williams). In Knight II,
however, the panel now says that giving the “erroneous jury
instruction [in Knight’s case] constituted fundamental error
under prior supreme court precedent,” such as Montgomery and
Williams. Knight II, slip. op. at 12 (emphasis added). This latter
statement is apparently based on the panel’s view, in its revised
opinion, that Dean v. State, 230 So. 3d 420, 427 (Fla. 2017) has
abrogated the jury pardon doctrine and thereby overruled these
two supreme court decisions.

                                25
preparation and review of jury instructions other than the specific
one at issue, and (b) the unsubstantiated belief that defense
counsel must have been aware of the jury instruction error (due to
legal developments in the past five years) and strategically
ignored it for tactical reasons to create reversible error. But no
record evidence shows that defense counsel knew of or was made
aware of the erroneous instruction as precedent requires; the
trial judge and prosecutor both missed it too. And nothing but
supposition supports the belief that defense counsel knowingly
and intentionally engaged in a stratagem or ploy to dupe the
court and create reversible error on appeal.

      As Judge Wolf points out, the majority’s approach “conflicts
with all existing case law generally concerning the concept of
waiver and specifically pertaining to waiver of fundamental error
contained in a jury instruction.” Knight II, slip. op. at 20 (Wolf, J.,
concurring in part, dissenting in part). Because the “record
reflects nothing more than unknowing acquiescence,” id. at 21,
the correct result under our precedent is to find no waiver. See,
e.g., Burns, 170 So. 3d at 94 n.3 (“The record in the present case
reflects nothing more than what the cases term unknowing
acquiescence.”) (citing numerous cases); Williams v. State, 145
So. 3d 997, 1003 (Fla. 1st DCA 2014) (“Nothing supports the view
that defense counsel affirmatively agreed to the omission,
knowing that the instructions were incomplete.”).

     Nothing distinguishes this case from our prior precedents,
which hold that merely agreeing generally to a set of proposed
jury instructions is not a waiver. See, e.g., Moore, 114 So. 3d 486.
In Moore, we recognized that “while it is clear counsel
affirmatively agreed to the manslaughter instruction as read to
the jury, he did not specifically and affirmatively agree to exclude
the required instruction on justifiable or excusable homicide.
Instead, he failed to object to that error. Merely failing to object
cannot waive fundamental error.” Id. at 493 (emphasis added).
On the other hand, waiver was found as to one proposed jury
instruction in Moore where the “trial court specifically brought to
counsel’s attention the problem of the intent language in the
proposed jury instruction and offered to strike that language” but


                                  26
counsel insisted on inclusion of the specific erroneous instruction.
Id. This case is controlled by Moore and related precedents
because defense counsel’s active participation in the jury
instruction process did not extend to approval of the specific
erroneous instruction at issue (he failed to object); and he did not
approve or insist upon use of the specific erroneous instruction,
which was not brought to his attention. This is nothing more
than “unknowing acquiescence” by defense counsel and all other
participants.

     The “facts of this case” demonstrated a waiver, the majority
claims, yet it takes speculation and insupportable attribution of
ill motive to defense counsel to reach this conclusion on the
sparse record presented. Knight II, slip. op. at 19. It skeptically
finds it “difficult to believe” that defense counsel “was unaware”
of changes to the jury instructions, implying that defense counsel
was in fact aware of the changes such that his failure to object to
the defective instruction was intended to inject error. Id. at 15.

     But defense counsel’s actual knowledge of the law is not
addressed anywhere in the record, which reflects only that he—
as well as the trial judge and prosecutor—made the same
mistake in overlooking the erroneous jury instruction. Why
impute intentional inaction and ill motive to defense counsel
when neither the prosecutor nor the trial judge caught the error?
We should not censoriously impute that a lawyer engaged in an
intentional “tactical manipulation” without supporting evidence.
Id. at 14. Indeed, by symmetric thinking, presumably both the
trial judge and the prosecutor—who also have an obligation to
stay abreast of changes in the law—were aware of the erroneous
jury instruction and intentionally overlooked it, rather than
being merely remiss or inattentive; each shares some degree of
responsibility for ensuring the correctness of jury instructions
used in criminal cases of this type where a retrial would
necessarily impose avoidable costs on the judicial system, great
inconvenience for witnesses, and further trauma to victims. The
crime here was atrocious, making it all the more important for
the trial judge, defense counsel, and prosecutor to apply the



                                27
correct law and avoid a retrial and its collateral costs and
impacts on those involved.

      The majority opinion originally said that on the few facts
presented, “counsel’s agreement to the erroneous instruction was
intentional, and therefore that he waived Defendant’s right to
now object to the instruction in order to obtain a new trial.”
Knight I, 2017 WL 4036091, at *5 (emphasis added). Notably, the
majority opinion now eliminates all reference to its prior
conclusion that the purported waiver was “intentional.” Compare
Knight I, 2017 WL 4036091, at *5, with Knight II, slip. op. at 1.
The only mention of the word “intentional” in the new opinion is
its statement of the standard for establishing waiver. Knight II¸
slip. op. at 13. It is not mentioned thereafter.

     Rather than say that an “intentional” waiver occurred, the
majority takes a different approach, concluding that waiver exists
because “experienced” defense counsel may have had a “plausible
strategic reason” for overlooking the erroneous jury instruction.
Id. at 13 (“Very significant to our analysis is the existence of a
plausible strategic reason for allowing the instruction to go to the
jury.”) (emphasis added). But there are “plausible strategic
reasons” for most everything; that a “plausible strategic reason”
for inaction might exist doesn’t mean a lawyer acted accordingly,
unless one assumes so or has proof. It is just as plausible, if not
most likely on this record, that defense counsel unknowingly
acquiesced in the erroneous instruction, especially given that
neither the trial judge nor the prosecutor knew of or pointed out
the error: everyone made the same mistake. “Plausible strategic
reasons” may underlie inadvertent prosecutorial errors, but
courts don’t rotely impute bad motives in those situations.

     The “plausible strategic reason” standard also uproots the
existing implied waiver standard in this way. No case says that a
mere likelihood that defense counsel may have acted
intentionally for strategic reasons is sufficient to establish an
intentional waiver by implication; a likelihood of this sort
theoretically exists in every case, making this an empty standard
when the “voluntary and intentional relinquishment of a known


                                28
right” must be proven. May have is no substitute for must have
when it comes to waiver of legal rights. To conclude that defense
counsel must have known the jury instruction was erroneous, and
cunningly ignored it as a stratagem (thereby ascribing
knowledge, bad motive, and intentional conduct), is pure
speculation on this record. Having deemed defense counsel a
crafty mastermind seeking to inject reversible error, the majority
declares that “[r]eviewing courts should not countenance
counsel’s tactical inaction.” Id. at 14 (emphasis added). Of course
we shouldn’t, but nothing in the record supports a conclusion of
intentional “tactical inaction” or sandbagging by defense counsel.
Other than supposition, nothing suggests that defense counsel
failed to challenge the erroneous instruction as a deliberate tactic
or ploy for strategic advantage. At most, the record establishes
“unknowing acquiescence,” which precedent holds is not an
intentional waiver. The majority originally dubbed it “silent
acquiescence,” Knight I, 2017 WL 4036091, at *5, (the phrase is
now gone) but every fundamental error of this type necessarily
arises from a failure to object, which is typified by silence.
Unknowing acquiescence is the legal standard that governs this
case, where no intentionality is shown.

     Two final points. First, it is incorrect to say that defense
counsel agreed to the specific erroneous instruction; he did not.
As in Moore, he agreed to the instructions generally and did not
accede knowingly to the specific erroneous instruction at issue;
the former “cannot waive fundamental error.” 114 So. 3d at 493.
Had the specific instruction and its error been brought to defense
counsel’s attention, and yet he still insisted on its inclusion, a
waiver may exist under Moore. Id. (stating that the “trial court
specifically brought to counsel’s attention the problem of the
intent language in the proposed jury instruction and offered to
strike that language”). The majority sidesteps Moore, concluding
that counsel’s agreement to the set of jury instructions generally,
not to the specific erroneous instruction, is sufficient to constitute
a waiver. Knight II, slip op. at 16-17. It characterizes this general
agreement as “Counsel’s Approval and Involvement” in the jury
instructions used, and deems it sufficient for imputing
intentional waiver. But merely approving instructions generally


                                 29
or having involvement in them generally, without the type of
specific waiver as in Moore, is insufficient under our precedent.

     Second, the new implied waiver standard, which is based on
“experienced” counsel’s failure to object to an erroneous
instruction for a “plausible strategic reason,” raises a range of
factual considerations relevant to the implied waiver inquiry that
should be considered (but aren’t in this case), such as: How long
must defense counsel have practiced criminal law to be
considered “experienced”? How many times has he handled this
type of case? Has he made the same mistake before? Is this the
first time he has represented a client on such a matter? How old
must the legal development be to justify imputing knowledge and
intentional conduct? Was this the first or hundredth trial for the
judge and prosecutor? What was their knowledge of the law? Had
the trial judge given, or the prosecutor not objected to, the
erroneous instruction before? What version of the judges’ bench
books and lawyers’ form libraries may have been consulted, and
were they updated in recent years? And so on. Let’s not forget
that the waiver issue was first raised on appeal in this Court,
such that no notice and hearing has been accorded to flesh out
the facts and adjudge credibility. All we have is an inanimate
trial transcript, which neither addresses nor sheds light on these
or related factual matters, making an appellate crystal ball a
necessity to glean voluntariness and intentionality in this case.

                               ***

     Waiver is designed to be difficult to establish, else valuable
rights—civil or criminal—are lost unintentionally and
involuntarily. But the majority’s new approach to implied waiver
creates a tautological forfeiture of such rights: a fundamentally
erroneous jury instruction is impliedly waived because it is
assumed that defense counsel knew of the erroneous instruction
and acted tactically and intentionally in allowing it. This
approach turns our precedent on its head, changing what has
long been fundamental error into no error at all. We have
previously said that “[m]erely failing to object cannot waive
fundamental error,” Moore, 114 So. 3d at 493, yet the panel


                                30
majority says the opposite: defense counsel had the
“responsibility” to object to the erroneous jury instruction and his
failure to do so amounts to an implied waiver because he may
have acted tactically. This is another way of saying goodbye to
the fundamental error doctrine; how else can fundamental error
exist but for the lack of an objection?

     In short, this is not a case where defense counsel asked for
or invited an erroneous instruction; neither he—nor the
prosecutor or judge—were aware of it. And nothing in the
record supports imputation of a voluntary and intentional
waiver of a known right, let alone bad motive or tactical
premeditation. Imputing waiver without a non-speculative
factual basis in the record for doing so violates precedent and
takes away a defendant’s right based solely on appellate
surmise. Because the majority’s new implied waiver formula
(general participation/involvement in jury instructions process
+ imputed knowledge of law/imputed bad motive = waiver) is at
odds with our precedents, en banc review is warranted.

     Short of en banc review, this type of dramatic shift in judicial
precedent ought to be done, if deemed appropriate, by our
supreme court. It is for that court, not a district court, to decide
in the first instance whether to chart a new course on a topic as
well-established as waiver of a client’s rights in a criminal case.
Long ago, in Hoffman v. Jones, a district court “exceeded its
authority” by holding that comparative negligence displaced
contributory negligence, a change in the law that only the
supreme court was allowed to make (under its view of separation
of powers at the time). 3 District courts must follow existing law,
but are empowered to suggest reforms: if they have doubt or


    3  280 So. 2d 431, 436 (Fla. 1973) (“We are . . . of the opinion
that we do have the power and authority to reexamine the
position we have taken in regard to contributory negligence and
to alter the rule we have adopted previously in light of current
‘social and economic customs’ and modern ‘conceptions of right
and justice.’”) (citation omitted).


                                 31
believe existing law should change, they “are free to certify
questions of great public interest to [the supreme court] for
consideration, and even to state their reasons for advocating
change.” Id. at 434. The panel majority does the opposite of what
Hoffman requires: it has leapfrogged precedent, altered the law
of waiver, and now asks our supreme court to bless its
handiwork. Our appellate judicial system operates structurally
on getting permission, not asking for forgiveness; that our
supreme court didn’t answer the question certified in Moore
doesn’t empower us to alter the contours of waiver law
unilaterally with the hope that a future supreme court will
change course and see it our way.

     All this said, a certified question—now added to the panel’s
opinion in Knight II—is appropriate to allow the supreme court to
consider the issues raised, understanding that it may choose to
reframe them. This case factually is a poor vehicle for a finding of
implied waiver, but the supreme court may be able to provide
guidance on whether implied waiver can be adjudged for the first
time on appeal without an evidentiary record or a fact-finding
hearing bearing on the matter; it may also weigh in on what facts
must be established in support of an implied waiver, such as the
actual knowledge and trial experience of the defense counsel,
whether defense counsel has made this same oversight in other
cases, the length of time a jury instruction has been invalidated,
and so forth. Waiver by implication is not favored, but future
cases may exist with adjudicated facts establishing that defense
counsel acted voluntarily and intentionally to create error by
knowingly and strategically withholding an objection to a
fundamentally erroneous jury instruction simply to get a new
trial. On the record presented, this is not such a case.




                                32
