5D02-1185 Ariel Concepcion v. State, 5D02-1190 Danny Cobb v. State 5D02-1319 Guillermo Fonseca v. State

State: Florida

Court: Florida Fifth District Court

Docket No: 5D02-1185

Case Date: 09/29/2003

Preview:IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT JULY TERM 2003 ARIEL CONCEPCION, Appellant, v. STATE OF FLORIDA, Appellee. ----------------------------------------------------DANNY ROBERT COBB, Appellant, v. STATE OF FLORIDA, Appellee. ----------------------------------------------------GUILLERMO FONSECA, Case No. 5D02-1319 Appellant, v. STATE OF FLORIDA, Appellee. ____________________________________/ Opinion filed October 3, 2003 Appeal from the Circuit Court for Orange County, Frank N. Kaney, Senior Judge. Terrence E. Kehoe of Law Offices of Terrence E. Kehoe, Orlando, for Appellant, Ariel Concepcion. James M. Russ of the Law Offices of James M. Russ, P.A., Orlando, for Appellant, Danny Robert Cobb. Case No. 5D02-1190 CORRECTION Case No. 5D02-1185

David D. Fussell of Law Offices of Horwitz & Fussell, P.A., Orlando, for Appellant, Guillermo Fonseca. Charles J. Crist, Jr., Attorney General, Tallahassee and Belle B. Schumann, Assistant Attorney General, Daytona Beach, for Appellee. PALMER, J. Defendants Danny Cobb, Ariel Concepcion, and Guillermo Fonseca appeal their judgments and sentences which were entered by the trial court after a jury found the three men guilty of committing the crimes of trafficking in cocaine in an amount of 400 grams or more, and conspiracy to traffic in cocaine.1 The charges arose out of an undercover sting operation which was executed by the police with the help of undercover agents, a confidential informant, and electronic wiretaps. Each defendant filed a separate appeal; however, a consolidated opinion is being issued for the three unconsolidated cases. The defendants have raised numerous claims of error challenging both their judgments and their sentences. Upon review, we conclude that only one claim merits discussion, the claim that the defendants are entitled to receive a new trial because fundamental error was committed by the trial court while issuing its instructions to the jury. We agree that such error did occur during the course of the trial court's jury instruction; therefore, we reverse the defendants' judgments and sentences, and remand the cases to the trial court for a new trial. The First District aptly summarized the analysis which appellate courts must apply when faced with claims of jury instruction error: Jury instructions are subject to the contemporaneous objection rule, and

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