As I discussed in my previous post, generally speaking, issues must be properly and timely preserved in order for such issues to be considered on appeal. However, in criminal cases, where an error is so serious as to be deemed fundamental, an appellate court may review such errors even if trial counsel failed to object. Florida’s Fourth District Court of Appeal recently applied the doctrine of fundamental error.
In Brett Fenster v. State of Florida, 4D07-1983 (slip opinion, May 18, 2011) (not final until disposition of timely filed motion for rehearing), the Defendant argued, inter alia, that the prosecutor made fifteen improper comments during closing argument which warranted a new trial. However, the Court disagreed, and held that although the comments were not proper, the comments did not rise to the level of harmful or fundamental error. In its rationale, the Court noted that Defendant conceded that at trial, defense counsel only objected to two of the fifteen allegedly improper comments. Nevertheless, the Court recalled that pursuant to Martinez v. State, 761 So. 2d 1074, 1082-1083 (Fla. 2000), an appellate court may consider both preserved and unpreserved errors in determining whether the preserved error was harmless beyond a reasonable doubt. Unfortunately for Defendant, even after considering the preserved and unpreserved errors, the Fourth District ultimately concluded that any errors were harmless beyond a reasonable doubt, and that the cumulative effect of the errors did not rise to the level of fundamental error. See Fenster, 4D07-1983, slip op. at *3 (citing Boyd v. State, 45 So. 3d 557, 560 (Fla. 4th DCA 2010) (“Improper comments rise to the level of fundamental error only where the error ‘reaches 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.’”) (citation omitted)).
As can be seen from Fenster‘s quotation of Boyd, 45 So. 3d 557, the standard of fundamental error may be difficult to meet. Nevertheless, the doctrine remains a viable exception to the preservation of error rule.