Saunders v. Dugger

District Court of Appeal of Florida

Saunders v. Dugger

579 So. 2d 397, 1991 Fla. App. LEXIS 4643, 1991 WL 82539

CourtDistrict Court of Appeal of Florida

DecidedMay 21, 1991

DocketNo. 91-7

StatusPublished

Cited by1 cases

This text of 579 So. 2d 397 (Saunders v. Dugger) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Saunders v. Dugger, 579 So. 2d 397, 1991 Fla. App. LEXIS 4643, 1991 WL 82539 (Fla. Ct. App. 1991).

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Opinion

PER CURIAM.

Carlyle Saunders petitions for a writ of habeas corpus for ineffective assistance of appellate counsel. He was convicted of first degree murder and attempted armed robbery in a trial at which the death penalty was waived.

He contends that on direct appeal his appellate counsel should have raised as a fundamental error the trial court’s failure to instruct the jury as to the necessarily lesser included offense of second degree murder. Saunders’ trial counsel made no request for such an instruction at trial, although Saunders himself did not personally waive the giving of this instruction. We conclude that in a case in which the death penalty has been waived, the applicable rule is that stated in Jones v. State, 484 So.2d 577, 579 (Fla.1986), rather than the case relied on by petitioner, Harris v. State, 438 So.2d 787 (Fla.1983). Jones reasoned that the Harris rule was created because of the situation facing the jury where the State seeks the death penalty. The Jones court held, “we here decline to apply that case’s [Harris ’] requirement of an express personal waiver outside the context in which it was found necessary.” Jones, 484 So.2d at 579. It is true that first degree murder remains statutorily classified as a capital crime even though the death penalty has been waived, State v. Griffith, 561 So.2d 528, 529 (Fla.1990), and it is true that Jones refers to Harris’ applicability to capital cases. Fairly read, however, we think that the Jones court limited Harris to those cases in which the death penalty is sought. The logic of Jones requires denial of relief. It therefore follows that (1) it is not fundamental error for the trial court not to instruct the jury on the necessarily included offense of second degree murder in a prosecution for first degree murder where, as here, the death penalty has been waived by the parties, and that, accordingly, no personal waiver by the defendant of the failure to so instruct the jury is required, and (2) appellate counsel herein was not ineffective for failing to raise such a point on appeal.

Petition denied.

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PER CURIAM.

Carlyle Saunders petitions for a writ of habeas corpus for ineffective assistance of appellate counsel. He was convicted of first degree murder and attempted armed robbery in a trial at which the death penalty was waived.

He contends that on direct appeal his appellate counsel should have raised as a fundamental error the trial court’s failure to instruct the jury as to the necessarily lesser included offense of second degree murder. Saunders’ trial counsel made no request for such an instruction at trial, although Saunders himself did not personally waive the giving of this instruction. We conclude that in a case in which the death penalty has been waived, the applicable rule is that stated in Jones v. State, 484 So.2d 577, 579 (Fla.1986), rather than the case relied on by petitioner, Harris v. State, 438 So.2d 787 (Fla.1983). Jones reasoned that the Harris rule was created because of the situation facing the jury where the State seeks the death penalty. The Jones court held, “we here decline to apply that case’s [Harris ’] requirement of an express personal waiver outside the context in which it was found necessary.” Jones, 484 So.2d at 579. It is true that first degree murder remains statutorily classified as a capital crime even though the death penalty has been waived, State v. Griffith, 561 So.2d 528, 529 (Fla.1990), and it is true that Jones refers to Harris’ applicability to capital cases. Fairly read, however, we think that the Jones court limited Harris to those cases in which the death penalty is sought. The logic of Jones requires denial of relief. It therefore follows that (1) it is not fundamental error for the trial court not to instruct the jury on the necessarily included offense of second degree murder in a prosecution for first degree murder where, as here, the death penalty has been waived by the parties, and that, accordingly, no personal waiver by the defendant of the failure to so instruct the jury is required, and (2) appellate counsel herein was not ineffective for failing to raise such a point on appeal.

Petition denied.

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Bluebook (online)

579 So. 2d 397, 1991 Fla. App. LEXIS 4643, 1991 WL 82539, Counsel Stack Legal Research, https://law.counselstack.com/opinion/saunders-v-dugger-fladistctapp-1991.

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