Citations
- 942 So. 2d 955
Full opinion text
PER CURIAM.
Appellant, James Womack, and a co-defendant, Courtney Dempsey, were charged with attempted first degree murder of a police officer with a firearm and five counts of robbery with a firearm. Following a jury trial, Womack was convicted of four counts of robbery with a firearm and one count of attempted robbery with a firearm. The jury acquitted Womack of attempted first degree murder with a firearm. The written instructions given to the jury stated that the State had to prove that James Womack “and/or Courtney Dempsey” committed the elements of the crimes. Because we conclude that the written “and/or” instructions constituted error, we reverse for a new trial.
The evidence showed that Womack and his co-defendant, Courtney Dempsey, committed an armed robbery of several victims and, during a subsequent high speed chase, shots were fired at a police officer who was pursuing them. Womack and Dempsey were tried together, before separate juries. During the jury instruction conference, the court agreed not to use “and/or” instructions, after an objection was made; however, the written instructions given to the jurors were not modified. For example, the court gave the following written instruction pertaining to attempted first degree murder with a firearm to the jurors:
Before you can find the defendants guilty of Attempted First Degree Murder with a Firearm the State must prove the following four elements beyond a reasonable doubt:
1. James Womack and/or Courtney Dempsey did some act intended to cause the death of Leif Broberg that went beyond just thinking or talking about it.
2. James Womack and/or Courtney Dempsey acted with premeditated design to kill Leif Broberg.
3. The act would have resulted in the death of Leif Broberg except that someone prevented James Womack and/or Courtney Dempsey from killing Leif Broberg or they failed to do so.
4. In the course of committing the Attempted First Degree Murder, James Womack and/or Courtney Dempsey carried a firearm.
(Emphasis supplied). The written instructions for all of the other crimes charged also contained the “and/or” language.
In Dempsey v. State, 939 So.2d 1165 (Fla. 4th DCA 2006), we recently held that the “and/or” instructions in the co-defendant’s case required a new trial. We also noted our decision Garzon v. State, 939 So.2d 278 (Fla. 4th DCA 2006), in which we held that where “and/or” instructions are given in combination with a principals instruction, the error is not fundamental error. As a result, in Dempsey, we found it appropriate to certify a question of great public importance to the Florida Supreme Court “to determine if the ‘and/or’ instruction, given in combination with a principals instruction, is non-fundamental error.”
In accordance with our decision in Dempsey, we reverse Womack’s convictions for robbery with a firearm and attempted robbery with a firearm and remand for a new trial because the written “and/or” instructions were error. As in Dempsey, we also certify the following question as one of great public importance:
DOES THE USE OF AN “AND/OR” JURY INSTRUCTION, OVER OBJECTION, IN A CASE INVOLVING CO-DEFENDANTS, CONSTITUTE ERROR REQUIRING A NEW TRIAL, WHERE A PRINCIPALS INSTRUCTION IS GIVEN?
Reversed and Remanded for New Trial.
STEVENSON, C.J., GUNTHER and TAYLOR, JJ., concur.