Supreme Court of Florida

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No. SC15-1320

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JESSIE CLAIRE ROBERTS,

Petitioner,

vs.

STATE OF FLORIDA,

Respondent.

[March 1, 2018]

LABARGA, C.J.

Jessie Claire Roberts seeks review of the decision of the First District Court 

of Appeal in Roberts v. State, 168 So. 3d 252 (Fla. 1st DCA 2015), on the ground 

that it expressly and directly conflicts with this Court’s decision in Walton v. State, 

208 So. 3d 60 (Fla. 2016), on the issue of whether the failure to instruct on the 

necessarily lesser included offense of manslaughter by act constitutes fundamental 

error. We have jurisdiction. See art. V, § 3(b)(3), Fla. Const. For the reasons 

explained below, we quash the decision below to the extent it is inconsistent with 

Walton and remand to the First District for proceedings consistent with this 
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opinion. Because we conclude Roberts is entitled to a new trial pursuant to 

Walton, we decline to address the remaining issues.

FACTS AND PROCEDURAL BACKGROUND

Roberts was charged with attempted second-degree murder, sale or 

possession with intent to sell cannabis while armed, carrying a concealed firearm, 

failure of defendant on bail to appear, and possession of less than twenty grams of 

cannabis. She pled guilty to carrying a concealed firearm and possession of less 

than twenty grams of cannabis. A jury found her guilty of the remaining counts, 

specifically finding that she was guilty of attempted second-degree murder with 

possession and discharge of a firearm causing great bodily harm.

The district court described the facts established during trial:

The State presented evidence that appellant shot the victim, 

Catrina Howard, in the face during a dispute over a marijuana 

transaction. Howard testified that her cousin, Jason Marks, was 

attempting to purchase marijuana from appellant, but they got into a 

verbal dispute over payment. Howard stated that appellant then 

pulled out a gun. Howard testified she became defensive for both 

herself and her cousin, so she punched appellant once in the face. In 

response, she stated appellant raised the gun and pointed it at her, and 

she put up her hands defensively in front of her face. Appellant then 

fired once, shooting Howard in the neck and hand. Howard testified 

that at the time of the shooting, she was standing ten feet away from 

appellant, she was not advancing on appellant or trying to hit her 

again, and no one was threatening appellant. Marks gave testimony 

consistent with that of Howard. A passerby also gave similar 

testimony that he saw appellant shoot the victim, who was not moving 

aggressively towards appellant.

Appellant testified in her own defense. She stated that she had 

the gun to her side and was backing away from Howard and Marks, 
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trying to retreat, when Howard punched her. Appellant testified she 

raised the gun, aimed it at Howard, and fired because she believed 

doing so was necessary to protect herself. She stated she believed that 

Howard and Marks would have “jumped” her if she had not shot 

Howard.

The jury was instructed on the charged offense of attempted 

second-degree murder, as well as the lesser-included offenses of 

aggravated battery and aggravated assault. Counsel did not request an 

instruction on attempted manslaughter, and no such instruction was 

given. The jury found appellant guilty of attempted second-degree 

murder as charged.

Roberts, 168 So. 3d at 253-54.

Roberts appealed her judgment and sentence to the First District, raising 

three issues: (1) the trial court committed fundamental error when it failed to 

instruct the jury on the necessarily lesser included offense of attempted 

manslaughter by act;

1

(2) the trial court committed fundamental error in giving 

contradictory instructions on the duty to retreat, which misstated the law and 

negated Roberts’ only defense; and (3) the trial court erred in denying Roberts’ 

motion for judgment of acquittal as to the second-degree murder charge. See id. at

253. The First District rejected Roberts’ claims and affirmed her convictions and 

sentences. Id.

 

1. The offense of attempted voluntary manslaughter was renamed attempted 

manslaughter by act in In re Standard Jury Instructions in Criminal Cases—

Instruction 6.6, 132 So. 3d 1124, 1126 (Fla. 2014). Although the offense was 

titled attempted voluntary manslaughter at the time of the crime in this case, for 

purposes of this opinion, we refer to the offense as attempted manslaughter by act.
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This review follows.

ANALYSIS

Roberts argues that the trial court fundamentally erred by failing to instruct

the jury on the necessarily lesser included offense of attempted manslaughter by

act. This raises a pure question of law subject to de novo review. Walton, 208 So. 

3d at 64 (citing Griffin v. State, 160 So. 3d 63, 67 (Fla. 2015)). Because Roberts 

did not object to these instructions, we review for fundamental error. See State v. 

Delva, 575 So. 2d 643 (Fla. 1991) (stating jury instructions “are subject to the 

contemporaneous objection rule, and, absent an objection at trial, can be raised on 

appeal only if fundamental error occurred”).

In order for jury instructions to constitute fundamental error, “the error must 

reach 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” and 

“occurs only when the omission is pertinent or material to what the jury must 

consider in order to convict.” State v. Delva, 575 So. 2d 643, 644-45 (Fla. 1991) 

(quoting Brown v. State, 124 So. 2d 481, 484 (Fla. 1960), and Stewart v. State, 420 

So. 2d 862, 863 (Fla. 1982)). “Additionally, the fundamental error doctrine 

‘should be applied only in rare cases where a jurisdictional error appears or where 

the interests of justice present a compelling demand for its application.’ ” 
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Martinez v. State, 981 So. 2d 449, 455 (Fla. 2008) (emphasis removed) (quoting 

Smith v. State, 521 So. 2d 106, 108 (Fla. 1988)).

Roberts asserts the trial court committed fundamental error by failing to 

instruct the jury on attempted manslaughter by act, a necessarily lesser included 

offense of attempted second-degree murder. We agree.

A necessarily lesser included offense is one “in which the statutory 

elements of the lesser included offense are always subsumed within those of the 

charged offense.” Sanders v. State, 944 So. 2d 203, 206 (Fla. 2006). In other 

words, “[w]hen the commission of one offense always results in the commission of 

another, then the latter is an inherent component of the former” and is a necessarily 

lesser included offense. State v. Weller, 590 So. 2d 923, 926 (Fla. 1991). It is well

established that the jury must be instructed on “any lesser offense all the elements 

of which are alleged in the accusatory pleadings and supported by the evidence 

adduced at trial.” Id. Our precedent is likewise clear that a “trial judge has no 

discretion in whether to instruct the jury on a necessarily lesser included offense. 

Once the judge determines that the offense is a necessarily lesser included offense, 

an instruction must be given.” Montgomery v. State, 39 So. 3d 252, 259 (Fla. 

2010) (quoting State v. Wimberly, 498 So. 2d 929, 932 (Fla. 1986)).

Attempted manslaughter by act is a necessarily lesser included offense of 

attempted second-degree murder. Walton, 208 So. 3d at 64. Therefore, the trial 
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court was required to give an instruction for attempted manslaughter by act when it 

gave the instruction for attempted second-degree murder. Id.

Here, the First District determined that a trial court’s failure to instruct on 

the necessarily lesser included offense of attempted manslaughter by act does not 

constitute fundamental error in a noncapital case where such an instruction is not 

requested. Roberts, 168 So. 3d at 258. However, subsequent to the district court’s 

decision, Walton was issued. In Walton, this Court determined that the trial court’s 

failure to give an instruction for attempted manslaughter where the defendant was 

charged with attempted second-degree murder constituted fundamental error, even 

though the defendant did not request the attempted manslaughter instruction. 208 

So. 3d at 65. We explained:

We have repeatedly held that the failure to correctly instruct the jury 

on a necessarily lesser included offense constitutes fundamental error. 

See, e.g., Williams v. State, 123 So. 3d 23, 27 (Fla. 2013) (holding that 

fundamental error occurs when the trial judge gives an incorrect 

instruction on the necessarily lesser included offense of attempted 

manslaughter for a defendant convicted of attempted second-degree 

murder); Montgomery, 39 So. 3d at 259 (same). If giving an incorrect 

instruction on a necessarily lesser included offense constitutes 

fundamental error, then a fortiori giving no instruction at all likewise

constitutes fundamental error.

Id.

The relevant facts in the present case are nearly identical to those in Walton. 

Here, Roberts was charged with attempted second-degree murder, defense counsel 

did not request a jury instruction on the necessarily lesser included offense of 
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attempted manslaughter, and the trial court did not give such an instruction. Thus, 

like Walton, the trial court’s failure to give the attempted manslaughter by act 

instruction here constitutes fundamental error. Accordingly, we hold Roberts is 

entitled to a new trial.

CONCLUSION

We quash the decision below to the extent it is inconsistent with Walton and 

remand to the First District for proceedings consistent with this opinion.

It is so ordered.

LABARGA, C.J., and PARIENTE, LEWIS, and QUINCE, JJ., concur.

POLSTON, J., dissents with an opinion, in which CANADY and LAWSON, JJ., 

concur. 

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, 

IF FILED, DETERMINED.

POLSTON, J., dissenting.

Unlike the majority, I do not believe that the trial court’s failure to give an 

unrequested attempted manslaughter by act instruction constitutes fundamental 

error. I would recede from this Court’s holding in Walton v. State, 208 So. 3d 60 

(Fla. 2016).

Fundamental error is error that “reach[es] 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.” State v. Delva, 575 So. 2d 643, 644-45 (Fla. 1991) 

(quoting Brown v. State, 124 So. 2d 481, 484 (Fla. 1960)). And as Justice Canady 
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has explained, “[i]n any case where the evidence supports the jury’s verdict of guilt 

on the charged offense and no error was made in the instructions regarding that 

offense, it is hard to fathom how an error in an instruction [(or a failure to give an 

instruction)] regarding a lesser included offense would properly be considered an 

error without which ‘a verdict of guilt could not have been obtained.’ ” Haygood 

v. State, 109 So. 3d 735, 749 (Fla. 2013) (Canady, J., dissenting). 

Here, because the evidence supports the jury’s verdict of attempted seconddegree murder and the jury was properly instructed regarding attempted seconddegree murder, the defendant is not entitled to a new trial based upon the failure to 

instruct the jury on the lesser included offense. “No defendant has the right to a 

trial in which the judge facilitates the jury’s acting in disregard of the law,” which 

is what the majority’s decision (and the jury pardon doctrine upon which it is 

based) promotes. Id.

Accordingly, I respectfully dissent.

CANADY and LAWSON, JJ., concur.

Application for Review of the Decision of the District Court of Appeal – Direct 

Conflict of Decisions 

First District - Case No. 1D14-321 

(Duval County)

Andy Thomas, Public Defender, and Maria Ines Suber, Assistant Public Defender, 

Second Judicial Circuit, Tallahassee, Florida,
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for Petitioner

Pamela Jo Bondi, Attorney General, Trisha Meggs Pate, Bureau Chief, Angela R. 

Hensel and Robert “Charlie” Lee, Assistant Attorneys General, Tallahassee, 

Florida,

for Respondent