Invited Error in a Grand Theft Jury Instruction
Defendant is tried for grand theft of a vehicle. The trial court and counsel discuss the jury instructions. Defense counsel requests an instruction on the lesser-included offense of petit theft but also agrees to the state's proposed grand theft instruction, which omits the element that the defendant knowingly obtained or used the property. The court gives the instruction as proposed. Defense counsel does not object. The jury convicts of grand theft. On appeal, appellate counsel wants to argue that the omission of the mens rea element is fundamental error. The state responds that any error was invited because defense counsel agreed to the instruction. The record shows the defense's theory was that the defendant borrowed the vehicle with permission and lacked intent to permanently deprive. The trial transcript is available.
1. Evaluate whether the omitted element is reviewable as fundamental error despite the lack of objection, considering the invited error doctrine.
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Florida law distinguishes preserved jury-instruction error from fundamental error. A defendant ordinarily must object to an erroneous instruction before the jury retires. If the error is not preserved, an appellate court may grant relief only if the error is fundamental, that is, if it goes to the foundation of the case or to a material element of the offense and negates the defendant's only defense. Omitting an element of grand theft can meet that test in an appropriate case. But the invited-error doctrine bars a defendant from complaining about an instruction he affirmatively requested or agreed to. The record here shows defense counsel agreed to the state's proposed grand theft instruction; that is more than a mere failure to object. The agreement likely constitutes invited error. Appellate counsel should therefore not assume the omission is reviewable as fundamental error. Counsel should read the colloquy closely to see whether defense counsel actually requested the instruction, merely failed to object, or agreed only to the lesser-included instruction. If the defense requested the erroneous instruction, the direct appeal is very weak.
2. What additional steps, if any, should appellate counsel consider before filing the initial brief?
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Before filing, appellate counsel should obtain and review the complete jury-instruction conference and charge. Counsel should determine whether the defense's position was an affirmative request, an agreement, or silence. If it was an affirmative request or agreement, counsel should consider whether the error is better raised in a postconviction motion under rule 3.850 as ineffective assistance of trial counsel, where a record can be developed on counsel's strategy and prejudice. On direct appeal, counsel might argue that the trial court had an independent duty to instruct on all elements and that invited error should not apply to a fundamental defect, but Florida courts generally enforce invited error. Counsel should also preserve any other issues, order the transcript, and consider whether the error was harmless beyond a reasonable doubt if it is reviewed. A motion for rehearing is not a substitute for preservation.