YOUSEL L. RIVERA, Appellant,
STATE OF FLORIDA, Appellee.
FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF
from the Circuit Court for Lee County; Mark A. Steinbeck,
Davide of Law Offices of Ana M. Davide, P.A., Miami, for
Jo Bondi, Attorney General, Tallahassee, and David Campbell,
Assistant Attorney General, Tampa, for Appellee.
L. Rivera appeals his judgment and mandatory life sentence
for attempted first-degree murder of a law enforcement
officer with a firearm. He raises five issues on appeal, but
we discuss the only one that requires reversal. Based on
Ramroop v. State, 214 So.3d 657 (Fla. 2017), we
reverse and remand for a new trial because the trial court
failed to give the requested jury instruction regarding
whether Rivera had knowledge that the victim was a law
offense arose as the result of a traffic stop during which
Rivera was a passenger. When the officer walked around to the
passenger side, Rivera shot the officer three times in the
torso at close range. Rivera was charged in an amended
information pursuant to sections 782.04(1), 777.04, 775.087,
775.0823, 784.07, and 782.065, Florida Statutes (2010), with
one count of attempted first-degree murder of a law
enforcement officer with a firearm during which Rivera
discharged a firearm and caused great bodily harm. Under
section 775.087(2)(a)(3), if the jury finds beyond a
reasonable doubt that the defendant committed an enumerated
offense and as a result of the discharge of a firearm the
defendant caused great bodily harm, the defendant must be
sentenced to a minimum term of twenty-five years in prison
and not more than a term of life in prison. Under section
782.065, if the jury finds beyond a reasonable doubt that the
defendant committed attempted first-degree murder and that
the victim of the offense was a law enforcement officer
engaged in the performance of a legal duty, the defendant
must be sentenced to life in prison.
defense theory was that Rivera lacked the intent to shoot the
officer. The defense expert, Dr. Waldman, opined that Rivera
was suffering from complex partial seizures at the time of
the shooting and afterward when he was arrested and that the
shooting was an automatism, an automatic but not conscious
behavior. When discussing things consistent with seizure
activity, Dr. Waldman mentioned statements from Rivera's
ex-girlfriend indicating that Rivera had become
hyperreligious, that he thought "people were out to harm
him, " and that he thought "demons were going to
possess him." Dr. Waldman testified that Rivera was in
fear at the time of the shooting; the doctor believed the
fear began when the officer shined a flashlight in
Rivera's eyes right at the time of the shooting.
contrast, the State's expert, Dr. Shadle, opined that
based on eyewitness accounts and the video of the shooting
Rivera's actions were inconsistent with a seizure or
automatism but rather "showed the intentionality of the
shooting" and the "goal-directness of the
shooting." Dr. Shadle opined that Rivera could have
formed the conscious intent to shoot and kill the officer.
parties stipulated at trial that the victim was a law
enforcement officer engaged in the lawful execution of his
legal duties. Rivera objected to the jury instructions and
requested a jury instruction that the State had to prove
Rivera knew that the victim was a law enforcement officer.
The trial court denied the request. Consistent with the trial
court's ruling on the jury instructions, the verdict form
did not require the jury to find that Rivera knew the victim
was a law enforcement officer.
this appeal has been pending, the Florida Supreme Court
decided Ramroop. Under the "pipeline rule"
the appellate court should dispose of a case on appeal
"in accord with the law in effect at the time of the
appellate court's decision rather than the law in effect
at the time the judgment appealed was rendered."
Bledsoe v. State, 764 So.2d 927, 928 (Fla. 2d DCA
2000) (quoting Nolte v. State, 726 So.2d 307, 308
(Fla. 2d DCA 1998)).
Ramroop, the Florida Supreme Court held "that
section 782.065 is a reclassification statute that creates a
substantive offense, which includes knowledge as an essential
element." 214 So.3d at 665. Because knowledge is an
essential element, "a defendant may be subject to the
increased sentence set forth in section 782.065 only when a
jury finds beyond a reasonable doubt that the offense was
committed with knowledge that the victim was a law
enforcement officer." Id. The supreme court
determined that "the erroneous jury instructions that
did not include knowledge as an essential element of
attempted murder of a law enforcement officer as to section
782.065 amounted to fundamental error" and that Ramroop
was entitled to a new trial. Id. at 668.
Rivera requested a jury instruction on the essential element
of knowledge. In addition, whether Rivera had knowledge that
the victim was a law enforcement officer at the time of the
shooting was a disputed issue based on the defense that
Rivera was suffering from a complex partial seizure and that
the shooting was an automatism, an automatic but not
conscious behavior. Thus, because the essential element of
knowledge was in dispute, the failure to properly instruct
the jury on the element of knowledge amounts to fundamental
error. See id. at 665.
time it filed its answer brief, the State recognized that
Ramroop was pending in the Florida Supreme Court and
agreed that the jury must make the finding that the defendant
had knowledge of the victim's status as a law enforcement
officer. The State contended that resentencing for the
underlying conviction without the reclassification regarding
a law enforcement officer would be the usual remedy but that
in this particular case ...