Third District Court of Appeal 

State of Florida 

Opinion filed May 3, 2017. 

Not final until disposition of timely filed motion for rehearing. 

________________ 

No. 3D15-852 

Lower Tribunal No. 06-27519 

________________ 

Roque Esteban Calafell, 

Appellant, 

vs. 

The State of Florida, 

Appellee. 

An Appeal from the Circuit Court for Miami-Dade County, 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. 
2

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). 
3

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 

 1 The trial court acknowledged that the evidence was sufficiently close to permit the 

jury to determine that the victim’s property was taken as an afterthought after 

Calafell attacked the victim. This colloquy took place during the discussion of 

whether the felony murder charge could be submitted to the jury.

2 At the time of trial, defense counsel proposed an afterthought instruction at 

variance with the then-extant standard instruction in Criminal Jury Instructions 15.1. 

In re Standard Inst. In Crim. Cases— Report No. 2012-09, 122 So. 3d 263, 284 (Fla. 

2013). In the event that the State continues to prosecute the robbery charge on 

remand and the defense seeks an afterthought instruction, the standard form should 

be considered. 
4

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 first degree (premeditated and felony) murder 

based on the trial court’s erroneous denial of his request for an afterthought 

instruction. 

The Fifth District reversed the robbery conviction based on the denial of the 

instruction, observing as well that if the afterthought theory “were believed by the 

jury, the robbery necessary to support the felony murder theory would be negated.” 

Id. Upon a review of the evidence of premeditation in the record, however, the Fifth 

District found “sufficient evidence to support the first degree premeditated murder 

conviction independent of the error relating to the felony murder conviction.” Id. at 

445. 

In the present case, Calafell told his girlfriend (who testified at trial and 

participated by luring the victim to the apartment shared by Calafell and the 
5

girlfriend) that he wanted to kill the victim. The victim told the couple he could 

obtain fraudulent social security cards for them, but did not deliver on that promise. 

Calafell’s presentation of evidence that the theft of the victim’s property was an 

afterthought—with its premise that the murder, not the theft, was the basis for luring 

the victim to Calafell’s and his girlfriend’s apartment—only provides additional 

indicia of premeditation regarding the murder. 

Finally, Calafell’s reliance on Perkins v. State, 814 So. 2d 1177 (Fla. 4th DCA 

2002), is unavailing. That case also involved the erroneous denial of an afterthought 

instruction and evidence which would have supported a conviction of first degree 

murder under the separate charges of premeditated or felony murder. The defendant 

in Perkins testified to a “different version of events” based on self-defense and his 

claim “that he had never intended to rob the victim and had only stabbed him in 

selfdefense.” Id. at 1178. The victim and defendant in that case had met in a bar 

that evening, in contrast to the longer course of dealing between Calafell and the 

victim in the case at hand, and in contrast to the defendant’s specific plan and 

preparation to murder (the kind of evidence detailed in Davis). In the case under 

review, Calafell did not testify, and thus did not contradict his girlfriend’s testimony 

regarding premeditation. 

For these reasons, we reverse and remand the case for a new trial on Count II 

of the indictment, and we affirm the conviction and sentence for first degree murder. 
6

We find no merit in Calafell’s other issues on appeal. 

Reversed in part, affirmed in part, and remanded for further proceedings on 

Count II.