Appellate counsel was ineffective for failing to raise that element (2a) of the attempted robbery with a firearm instruction was omitted from the jury instructions constituting fundamental error.
The jury instruction in this case resulted in fundamental error because it omitted (2a), the requirement that the jurors find someone stopped or did not stop the petitioner from committing the crime, which was pertinent or material to what the jury must consider in order to convict.
The Florida Supreme Court recently emphasized its long-standing holdings that a defendant has a fundamental right to have the jury correctly and intelligently instructed on the material elements of the charged crime. Battle v. State, 911 So.2d 85, 88 (Fla.2005). In this case, trial attorney had spoken of renunciation and abandonment in his motion for acquittal; thereby indicating a dispute that no one stopped the suspect from committing the crime. The omitted element calculated to confuse or mislead the jury, reached 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. (Barbour v. Brinkler Fla., Inc., 801 So. 2d 953, 959 (Fla. 5th DCA 2001).
The failure to give a complete or accurate instruction in a criminal case constitutes fundamental error if it relates to an element of the charged offense. Dowling v. State, 723 So.2d 307, 308 (Fla. 4th DCA 1998). This violated the petitioner’s due process right to have every element of the crime proved beyond a reasonable doubt (U.S. Const., 5th, 6th, 8th,’ & 14th Amendments) and his due process right to a fair trial.
Petitioner contends that (2a) was a very important element that was left out of the attempted robbery jury instructions. The person that attempted the robbery stopped in his tracks. The suspect did not take the offered credit cards or cell phone offered. When the victim began to cry, the suspect abandoned his efforts and left. (T-404) The jurors did not get a chance to deliberate on the element that someone did or did not prevent the suspect from committing the attempted robbery violating his constitutional rights.
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