Joshua T. Oliver v. State of Florida , 2015 Fla. App. LEXIS 1051 ( 2015 )

IN THE DISTRICT COURT OF APPEAL
FIRST DISTRICT, STATE OF FLORIDA
JOSHUA T. OLIVER, NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
Appellant, DISPOSITION THEREOF IF FILED
v. CASE NO. 1D13-1281
STATE OF FLORIDA,
Appellees.
_____________________________/
Opinion filed January 29, 2015.
An appeal from the Circuit Court for Duval County.
Adrian G. Soud, Judge
Nancy A. Daniels, Public Defender, and Courtenay H. Miller, Assistant Public
Defender, Office of the Public Defender, Tallahassee, for Appellant.
Pamela Jo Bondi, Attorney General, and Giselle Denise Lylen, Assistant Attorney
General, Office of the Attorney General, Tallahassee, for Appellees.
PER CURIAM.
Appellant was convicted of manslaughter and sentenced to 30 years in prison
for a stabbing that occurred at a nightclub. He contends that the jury instructions on
his sole defense – justifiable use of deadly force – were fundamentally erroneous for
the reasons stated in Floyd v. State, 2014 WL 4197377 (Fla. 1st DCA Aug. 26,
2014). We affirm because, at the charge conference, Appellant’s counsel
affirmatively requested and specifically agreed to the applicable parts of the
justifiable use of deadly force instructions that were to be included, thereby waiving
any claim of fundamental error in the instructions. See Armstrong v. State, 579 So.
2d 734, 735 (Fla. 1991) (“By affirmatively requesting the instruction he now
challenges, [the defendant] has waived any claim of error in the
instruction.”); Joyner v. State, 41 So. 3d 306, 307 (Fla. 1st DCA 2010) (“[W]here
defense counsel agrees to a standard jury instruction and then challenges the
conviction based upon fundamental error in that instruction, reversal would have the
unintended consequence of encouraging defense counsel to ‘stand mute and, if
necessary, agree to an erroneous instruction’ or sacrifice his client’s opportunity for
a second trial.”) (quoting Calloway v. State, 37 So. 3d 891 (Fla. 1st DCA
2010)); cf. Williams v. State, 145 So. 3d 997, 1003 (Fla. 1st DCA 2014) (explaining
that waiver of a claim of fundamental error in a jury instruction requires more than
“unknowing acquiescence” to the instruction); Moore v. State, 114 So. 3d 486, 493
(Fla. 1st DCA 2013) (holding that counsel’s mere failure to object to an erroneous
jury instruction is insufficient by itself to waive a claim of fundamental error based
upon the instruction). We affirm the other issues raised by Appellant without
discussion.
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AFFIRMED.
PADOVANO, WETHERELL, and MAKAR, JJ., CONCUR.
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