final until disposition of timely filed motion for rehearing.
Appeal from the Circuit Court for Miami-Dade County Lower
Tribunal No. 06-27519, Marisa Tinkler Mendez, Judge.
J. Martinez, Public Defender, and Robert Kalter, Assistant
Public Defender, for appellant.
Jo Bondi, Attorney General, and Douglas J. Glaid, Senior
Assistant Attorney General, for appellee.
SALTER, EMAS and LOGUE, JJ.
Calafell appeals his adverse jury verdict, conviction and
sentences for first degree murder and robbery. We reverse his
robbery conviction and remand that charge for a new trial,
concluding that his request for a special jury instruction on
the afterthought defense was well taken and erroneously
affirm his conviction on the first degree murder charge
because it rests on competent, substantial evidence
establishing premeditation irrespective of the robbery
conviction. The jury rendered a general verdict subsuming
both first degree premeditated murder and felony murder. The
evidence independently establishing premeditation is
sufficient to warrant affirmance despite the reversal of the
robbery conviction as a basis for a conviction for felony
defense counsel made a timely request for a special
instruction on his "afterthought" defense, based on
evidence that Calafell removed the victim's property as
an afterthought to the use of force in the criminal incident.
While the trial court has discretion on whether to give a
particular instruction, "in a criminal proceeding, the
trial court's discretion is limited by the
defendant's right to have the jury instructed on any
valid theory of defense supported by record evidence."
Cliff Berry, Inc. v. State, 116 So.3d 394, 406 (Fla.
3d DCA 2012).
defendant is entitled to a special jury instruction if:
"(1) the special instruction was supported by the
evidence; (2) the standard instruction
did not adequately cover the theory of defense; and (3) the
special instruction was a correct statement of the law and
not misleading or confusing." Wheeler v. State,
4 So.3d 599, 605 (Fla. 2009) (quoting Stephens v.
State, 787 So.2d 747, 756 (Fla. 2001)). In this case,
the three requirements were present and the robbery
conviction must be reversed.
reversal of the robbery conviction would require the reversal
of a special interrogatory verdict for felony murder
predicated on robbery as the underlying felony, as conviction
by the jury on a lesser charge of theft (pursuant to the
afterthought instruction and evidence) would not have
supported a felony murder conviction. Here, however, the
defense did not seek or obtain special interrogatories
regarding premeditated first degree murder and felony murder.
San Martin v. State, 717 So.2d 462, 470 (Fla. 1998),
the Supreme Court of Florida followed the opinion of the
Supreme Court of the United States in Griffin v. United
States, 502 U.S. 46 (1991), regarding a general jury
verdict grounded on an alternative theory of guilt for which
the evidence is sufficient. The Fifth District applied
San Martin to the facts of a case similar to the
case at hand in Davis v. State, 922 So.2d 438, 444
(Fla. 5th DCA 2006). In that case, the defendant sought
reversal of his conviction for robbery and for ...