Opinion
No. 91-7.
May 21, 1991.
Appeal from the Circuit Court, Dade County, Ralph N. Person, J.
Carlyle Saunders, in pro per.
Robert A. Butterworth, Atty. Gen., and Julie S. Thornton, Asst. Atty. Gen., for respondent.
Before HUBBART, BASKIN and COPE, JJ.
Carlyle Saunders petitions for a writ of habeas corpus for ineffective assistance of appellate counsel. He was convicted of first degree murder and attempted armed robbery in a trial at which the death penalty was waived.
He contends that on direct appeal his appellate counsel should have raised as a fundamental error the trial court's failure to instruct the jury as to the necessarily lesser included offense of second degree murder. Saunders' trial counsel made no request for such an instruction at trial, although Saunders himself did not personally waive the giving of this instruction. We conclude that in a case in which the death penalty has been waived, the applicable rule is that stated in Jones v. State, 484 So.2d 577, 579 (Fla. 1986), rather than the case relied on by petitioner, Harris v. State, 438 So.2d 787 (Fla. 1983). Jones reasoned that the Harris rule was created because of the situation facing the jury where the State seeks the death penalty. The Jones court held, "we here decline to apply that case's [ Harris'] requirement of an express personal waiver outside the context in which it was found necessary." Jones, 484 So.2d at 579. It is true that first degree murder remains statutorily classified as a capital crime even though the death penalty has been waived, State v. Griffith, 561 So.2d 528, 529 (Fla. 1990), and it is true that Jones refers to Harris' applicability to capital cases. Fairly read, however, we think that the Jones court limited Harris to those cases in which the death penalty is sought. The logic of Jones requires denial of relief. It therefore follows that (1) it is not fundamental error for the trial court not to instruct the jury on the necessarily included offense of second degree murder in a prosecution for first degree murder where, as here, the death penalty has been waived by the parties, and that, accordingly, no personal waiver by the defendant of the failure to so instruct the jury is required, and (2) appellate counsel herein was not ineffective for failing to raise such a point on appeal.
Petition denied.