          Supreme Court of Florida
                                   ____________

                                   No. SC15-1320
                                   ____________

                           JESSIE CLAIRE ROBERTS,
                                   Petitioner,

                                          vs.

                              STATE OF FLORIDA,
                                  Respondent.

                                   [March 1, 2018]

LABARGA, C.J.

      Jessie Claire Roberts seeks review of the decision of the First District Court

of Appeal in Roberts v. State, 168 So. 3d 252 (Fla. 1st DCA 2015), on the ground

that it expressly and directly conflicts with this Court’s decision in Walton v. State,

208 So. 3d 60 (Fla. 2016), on the issue of whether the failure to instruct on the

necessarily lesser included offense of manslaughter by act constitutes fundamental

error. We have jurisdiction. See art. V, § 3(b)(3), Fla. Const. For the reasons

explained below, we quash the decision below to the extent it is inconsistent with

Walton and remand to the First District for proceedings consistent with this
opinion. Because we conclude Roberts is entitled to a new trial pursuant to

Walton, we decline to address the remaining issues.

                FACTS AND PROCEDURAL BACKGROUND

      Roberts was charged with attempted second-degree murder, sale or

possession with intent to sell cannabis while armed, carrying a concealed firearm,

failure of defendant on bail to appear, and possession of less than twenty grams of

cannabis. She pled guilty to carrying a concealed firearm and possession of less

than twenty grams of cannabis. A jury found her guilty of the remaining counts,

specifically finding that she was guilty of attempted second-degree murder with

possession and discharge of a firearm causing great bodily harm.

      The district court described the facts established during trial:

             The State presented evidence that appellant shot the victim,
      Catrina Howard, in the face during a dispute over a marijuana
      transaction. Howard testified that her cousin, Jason Marks, was
      attempting to purchase marijuana from appellant, but they got into a
      verbal dispute over payment. Howard stated that appellant then
      pulled out a gun. Howard testified she became defensive for both
      herself and her cousin, so she punched appellant once in the face. In
      response, she stated appellant raised the gun and pointed it at her, and
      she put up her hands defensively in front of her face. Appellant then
      fired once, shooting Howard in the neck and hand. Howard testified
      that at the time of the shooting, she was standing ten feet away from
      appellant, she was not advancing on appellant or trying to hit her
      again, and no one was threatening appellant. Marks gave testimony
      consistent with that of Howard. A passerby also gave similar
      testimony that he saw appellant shoot the victim, who was not moving
      aggressively towards appellant.
             Appellant testified in her own defense. She stated that she had
      the gun to her side and was backing away from Howard and Marks,

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      trying to retreat, when Howard punched her. Appellant testified she
      raised the gun, aimed it at Howard, and fired because she believed
      doing so was necessary to protect herself. She stated she believed that
      Howard and Marks would have “jumped” her if she had not shot
      Howard.
             The jury was instructed on the charged offense of attempted
      second-degree murder, as well as the lesser-included offenses of
      aggravated battery and aggravated assault. Counsel did not request an
      instruction on attempted manslaughter, and no such instruction was
      given. The jury found appellant guilty of attempted second-degree
      murder as charged.

Roberts, 168 So. 3d at 253-54.

      Roberts appealed her judgment and sentence to the First District, raising

three issues: (1) the trial court committed fundamental error when it failed to

instruct the jury on the necessarily lesser included offense of attempted

manslaughter by act;1 (2) the trial court committed fundamental error in giving

contradictory instructions on the duty to retreat, which misstated the law and

negated Roberts’ only defense; and (3) the trial court erred in denying Roberts’

motion for judgment of acquittal as to the second-degree murder charge. See id. at

253. The First District rejected Roberts’ claims and affirmed her convictions and

sentences. Id.



        1. 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 1124, 1126 (Fla. 2014). Although the offense was
titled attempted voluntary manslaughter at the time of the crime in this case, for
purposes of this opinion, we refer to the offense as attempted manslaughter by act.


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      This review follows.

                                      ANALYSIS

      Roberts argues that the trial court fundamentally erred by failing to instruct

the jury on the necessarily lesser included offense of attempted manslaughter by

act. This raises a pure question of law subject to de novo review. Walton, 208 So.

3d at 64 (citing Griffin v. State, 160 So. 3d 63, 67 (Fla. 2015)). Because Roberts

did not object to these instructions, we review for fundamental error. See State v.

Delva, 575 So. 2d 643 (Fla. 1991) (stating jury instructions “are subject to the

contemporaneous objection rule, and, absent an objection at trial, can be raised on

appeal only if fundamental error occurred”).

      In order for jury instructions to constitute fundamental error, “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” and

“occurs only when the omission is pertinent or material to what the jury must

consider in order to convict.” State v. Delva, 575 So. 2d 643, 644-45 (Fla. 1991)

(quoting Brown v. State, 124 So. 2d 481, 484 (Fla. 1960), and Stewart v. State, 420

So. 2d 862, 863 (Fla. 1982)). “Additionally, the fundamental error doctrine

‘should be applied only in rare cases where a jurisdictional error appears or where

the interests of justice present a compelling demand for its application.’ ”




                                          -4-
Martinez v. State, 981 So. 2d 449, 455 (Fla. 2008) (emphasis removed) (quoting

Smith v. State, 521 So. 2d 106, 108 (Fla. 1988)).

      Roberts asserts the trial court committed fundamental error by failing to

instruct the jury on attempted manslaughter by act, a necessarily lesser included

offense of attempted second-degree murder. We agree.

       A necessarily lesser included offense is one “in which the statutory

elements of the lesser included offense are always subsumed within those of the

charged offense.” Sanders v. State, 944 So. 2d 203, 206 (Fla. 2006). In other

words, “[w]hen the commission of one offense always results in the commission of

another, then the latter is an inherent component of the former” and is a necessarily

lesser included offense. State v. Weller, 590 So. 2d 923, 926 (Fla. 1991). It is well

established that the jury must be instructed on “any lesser offense all the elements

of which are alleged in the accusatory pleadings and supported by the evidence

adduced at trial.” Id. Our precedent is likewise clear that a “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.” Montgomery v. State, 39 So. 3d 252, 259 (Fla.

2010) (quoting State v. Wimberly, 498 So. 2d 929, 932 (Fla. 1986)).

      Attempted manslaughter by act is a necessarily lesser included offense of

attempted second-degree murder. Walton, 208 So. 3d at 64. Therefore, the trial


                                         -5-
court was required to give an instruction for attempted manslaughter by act when it

gave the instruction for attempted second-degree murder. Id.

      Here, the First District determined that a trial court’s failure to instruct on

the necessarily lesser included offense of attempted manslaughter by act does not

constitute fundamental error in a noncapital case where such an instruction is not

requested. Roberts, 168 So. 3d at 258. However, subsequent to the district court’s

decision, Walton was issued. In Walton, this Court determined that the trial court’s

failure to give an instruction for attempted manslaughter where the defendant was

charged with attempted second-degree murder constituted fundamental error, even

though the defendant did not request the attempted manslaughter instruction. 208

So. 3d at 65. We explained:

      We have repeatedly held that the failure to correctly instruct the jury
      on a necessarily lesser included offense constitutes fundamental error.
      See, e.g., Williams v. State, 123 So. 3d 23, 27 (Fla. 2013) (holding that
      fundamental error occurs when the trial judge gives an incorrect
      instruction on the necessarily lesser included offense of attempted
      manslaughter for a defendant convicted of attempted second-degree
      murder); Montgomery, 39 So. 3d at 259 (same). If 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.

Id.

      The relevant facts in the present case are nearly identical to those in Walton.

Here, Roberts was charged with attempted second-degree murder, defense counsel

did not request a jury instruction on the necessarily lesser included offense of

                                         -6-
attempted manslaughter, and the trial court did not give such an instruction. Thus,

like Walton, the trial court’s failure to give the attempted manslaughter by act

instruction here constitutes fundamental error. Accordingly, we hold Roberts is

entitled to a new trial.

                                   CONCLUSION

       We quash the decision below to the extent it is inconsistent with Walton and

remand to the First District for proceedings consistent with this opinion.

       It is so ordered.

LABARGA, C.J., and PARIENTE, LEWIS, and QUINCE, JJ., concur.
POLSTON, J., dissents with an opinion, in which CANADY and LAWSON, JJ.,
concur.

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

POLSTON, J., dissenting.

       Unlike the majority, I do not believe that the trial court’s failure to give an

unrequested attempted manslaughter by act instruction constitutes fundamental

error. I would recede from this Court’s holding in Walton v. State, 208 So. 3d 60

(Fla. 2016).

       Fundamental error is error that “reach[es] 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.” State v. Delva, 575 So. 2d 643, 644-45 (Fla. 1991)

(quoting Brown v. State, 124 So. 2d 481, 484 (Fla. 1960)). And as Justice Canady

                                          -7-
has explained, “[i]n 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 [(or a failure to give an

instruction)] regarding a lesser included offense would properly be considered an

error without which ‘a verdict of guilt could not have been obtained.’ ” Haygood

v. State, 109 So. 3d 735, 749 (Fla. 2013) (Canady, J., dissenting).

      Here, because the evidence supports the jury’s verdict of attempted second-

degree murder and the jury was properly instructed regarding attempted second-

degree murder, the defendant is not entitled to a new trial based upon the failure to

instruct the jury on the lesser included offense. “No defendant has the right to a

trial in which the judge facilitates the jury’s acting in disregard of the law,” which

is what the majority’s decision (and the jury pardon doctrine upon which it is

based) promotes. Id.

      Accordingly, I respectfully dissent.

CANADY and LAWSON, JJ., concur.

Application for Review of the Decision of the District Court of Appeal – Direct
Conflict of Decisions

      First District - Case No. 1D14-321

      (Duval County)

Andy Thomas, Public Defender, and Maria Ines Suber, Assistant Public Defender,
Second Judicial Circuit, Tallahassee, Florida,


                                         -8-
      for Petitioner

Pamela Jo Bondi, Attorney General, Trisha Meggs Pate, Bureau Chief, Angela R.
Hensel and Robert “Charlie” Lee, Assistant Attorneys General, Tallahassee,
Florida,

      for Respondent




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