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Calafell v. State

Florida Court of Appeals, Third District

May 3, 2017

Roque Esteban Calafell, Appellant,
v.
The State of Florida, Appellee.

         Not final until disposition of timely filed motion for rehearing.

          An Appeal from the Circuit Court for Miami-Dade County Lower Tribunal No. 06-27519, Marisa Tinkler Mendez, Judge.

          Carlos J. Martinez, Public Defender, and Robert Kalter, Assistant Public Defender, for appellant.

          Pamela Jo Bondi, Attorney General, and Douglas J. Glaid, Senior Assistant Attorney General, for appellee.

          Before SALTER, EMAS and LOGUE, JJ.

          SALTER, J.

          Roque 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 denied.

         We 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 murder.

         The Afterthought Instruction

         Calafell's 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).

          The defendant is entitled to a special jury instruction if: "(1) the special instruction was supported by the evidence;[1] (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.[2]

         Premeditated Murder

         The 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.

         In 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 ...


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