Jacob Stephen v. State of Florida

D ISTRICT C OURT OF A PPEAL O F T HE STATE OF F LORIDA
FOURTH DISTRICT
JACOB JUSTICE STEPHEN,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
No. 4D2024-2225
[January 7, 2026]
Appeal from the Circuit Court for the Nineteenth Judicial Circuit, St.
Lucie County; Lawrence M. Mirman, Judge; L.T. Case No. 56-2021-CF-
000122.
Daniel 	Eisinger, 	Public 	Defender, 	and 	Gary 	L. 	Caldwell, 	Assistant
Public Defender, West Palm Beach, for appellant.
James 	Uthmeier, 	Attorney 	General, 	Tallahassee, 	and 	Melynda 	L.
Melear, Senior Assistant Attorney General, West Palm Beach, for appellee.
CONNER , J.
Defendant, 	Jacob 	Justice 	Stephen, 	appeals 	his 	judgments 	and
sentences 	after 	being 	adjudicated 	guilty 	of 	attempted 	second-degree
murder and possession of a firearm by a prohibited person. 	Defendant
raises eight issues on appeal. We affirm the trial court’s rulings on all the
issues and sub-issues raised without discussion, except one. 	We find
merit in Defendant’s argument that the trial court fundamentally erred in
instructing the jury as to Count 2, possession of a firearm by a prohibited
person. 	For the reasons discussed below, we reverse the judgment and
sentence as to Count 2 and remand for further proceedings.
Background
Defendant was charged by information with attempted first-degree
murder (“Count 1”) and possession of a firearm by a prohibited person
(“Count 2”). 	A jury found him guilty as charged but, at sentencing, the
trial 	court 	reduced 	Count 	1 	to 	attempted 	second-degree 	murder.
Defendant was given concurrent prison sentences for both counts.

2
The charges arose from incidents in a parking lot of a club at closing
time. 	As patrons were leaving the club, several fights broke out in the
parking lot. 	During the chaos, individuals threw beer bottles and fired
shots. 	The State’s theory of prosecution was that, as Defendant was
leaving, the victim approached the rear of Defendant’s car and Defendant,
believing the victim had struck his car with a beer bottle, exited his vehicle
with a gun and fired shots, intentionally striking the victim.
Prior to trial, Defendant sought dismissal of the charges with a Stand
Your Ground (“SYG”) motion. At the SYG hearing, Defendant testified that,
prior to getting to his vehicle, he was attacked by two or three people.
Defendant explained that, as he tried to leave, the victim had approached
his vehicle screaming and gesturing as if the victim was going to attack,
prompting Defendant to step out of his car and fire shots in self-defense.
The trial court denied Defendant’s SYG motion, and the case proceeded to
a jury trial.
Pretrial, it was agreed that the trial would be bifurcated between Count
1, the attempted murder charge, and Count 2, the possession of a firearm
by a prohibited person. The jury was not informed it would be deliberating
on two counts separately until after a verdict was rendered on Count 1.
Immediately upon the jury returning a guilty verdict as to Count 1, the
trial court instructed the jury to return to the jury room so the trial court
could take up a matter out of their presence. 	The trial court inquired as
to whether Defendant wanted to enter a plea to Count 2 or proceed with
trial. Although Defendant purportedly agreed during the bench conference
that the jury could be advised he had stipulated to being an adjudicated
delinquent who was not allowed to possess a firearm, he declined to enter
a plea to Count 2.
When the jury returned to the courtroom, the trial court advised the
jurors that they would be asked to decide Count 2 and the nature of Count
2. 	The trial court then stated:
The parties have stipulated to the second element [under-age
possession by a delinquent]. 	You’ve already found the first
[element], that he was in actual possession of a firearm. 	The
parties have stipulated to the second part, so what we need to
do is have you as pro, for the matter of procedure go back to
the jury room with the verdict form and check the appropriate
box, which the question is do you now find the State has
proven beyond a reasonable doubt the defendant possessed a

3
firearm and at the time he was prohibited person, if you follow
that. 	Do you follow that?
Okay, so I need you to go to the jury room and complete the
verdict form as you see appropriate and that, after that that’ll
conclude your service in the case.
The trial court gave no further instructions to the jury before deliberation
on Count 2.
Appellate Analysis
Defendant argues the trial court fundamentally erred by improperly
instructing the jury that its prior finding on Count 1—that Defendant had
possessed a firearm—could be applied to Count 2. Defendant also argues
the trial court fundamentally erred by giving jury instructions for Count 2
which negated the “multiple counts, single defendant” standard criminal
jury instruction. 	We agree.
“[G]enerally speaking, the standard of review for jury instructions is
abuse of discretion[.]” 	Lewis v. State, 22 So. 3d 753, 758 (Fla. 4th DCA
2009) (quoting Pollock v. CCC Invs. I, LLC, 933 So. 2d 572, 574 (Fla. 4th
DCA 2006)). 	“Reversible error occurs when an instruction is not only an
erroneous or incomplete statement of the law, but is also confusing or
misleading.” 	Dockswell v. Bethesda Mem’l Hosp., Inc., 210 So. 3d 1201,
1214 (Fla. 2017) (quoting Gross v. Lyons, 721 So. 2d 304, 306 (Fla. 4th
DCA 1998) (emphasis added)). 	Fundamental error is reviewed de novo.
Simms v. State, 140 So. 3d 1000, 1003 (Fla. 1st DCA 2014).
Here, 	the 	jury 	instructions 	given 	by 	the 	trial 	court 	for 	Count 	2
constituted fundamental error because the instructions negated Florida
Standard Jury Instruction (Criminal) 3.12(a), which provides:
A separate crime is charged in each count of the information,
and although they have been tried together, each crime and
the evidence applicable to it must be considered separately
and a separate verdict returned as to each. A finding of guilty
or not guilty as to one crime must not affect your verdict as to
the other crimes charged.
Fla. Std. Jury Instr. (Crim.) 3.12(a) (emphasis added). 	More problematic,
the 	jury 	was 	not 	instructed 	on 	Florida 	Standard 	Jury 	Instruction
(Criminal) 3.12(a) at all.

4
As Florida Standard Jury Instruction (Criminal) 3.12(a) makes clear,
“each 	crime 	and 	the 	evidence 	applicable 	to 	it 	must 	be 	considered
separately.” 	Id. 	Additionally, the instruction’s language that “[a] finding
of guilty or not guilty as to one crime must not affect your verdict as to the
other crimes charged” led the Second District to recently conclude in
Lydecker v. State, 390 So. 3d 688, 695 (Fla. 2d DCA 2024), that the “[single
defendant, multiple counts instruction] requires each count to be proven
independently[.]” (emphasis added).
As Defendant argues here, a finding of possession of a firearm on one
count does not carry over to a different count. See State v. McKinnon, 540
So. 2d 111, 113 (Fla. 1989) (“Conviction on one count in an information
may not be used to enhance punishment for a conviction on another
count.”); O’Neal v. State, 298 So. 3d 77, 83 (Fla. 4th DCA 2020) (same);
Blackwelder v. State, 476 So. 2d 280, 281 (Fla. 2d DCA 1985) (“The
allegation contained in the robbery count that appellant used a weapon
cannot 	be 	used 	to 	supplement 	the 	count 	for 	attempted 	first 	degree
murder.”); Cochenet v. State, 445 So. 2d 398, 399 (Fla. 5th DCA 1984)
(“Although the fact of the assault is clearly alleged in another count, that
count cannot be used to supply an added element for count one.”)
Additionally, it is troublesome that the trial court instructed the jury:
The parties have stipulated to the second part [under-age
possession by a delinquent], so what we need to do is have
you as pro, for the matter of procedure go back to the jury
room with the verdict form and check the appropriate box,
which the question is do you now find the State has proven
beyond a reasonable doubt the defendant possessed a firearm
and at the time he was prohibited person, if you follow that.
(emphasis added). 	In essence, the trial court instructed the jury as a
“matter of procedure [to] go back to the jury room with the verdict form
and 	check 	the 	appropriate 	box” 	finding 	beyond 	a 	reasonable 	doubt
Defendant had possessed a firearm while being a prohibited person. 	The
record shows the jury took virtually no time before returning a guilty
verdict 	on 	Count 	2 	as 	instructed. 	The 	trial 	court’s 	Count 	2 	jury
instructions, essentially directing the jury which “appropriate box” to
check on the verdict form, denied Defendant due process and the right to
a jury trial.
We hold that the trial court fundamentally erred on Count 2 in failing
to instruct the jury on how to consider multiple counts against a single
defendant as stated in Florida Standard Jury Instruction (Criminal) 3.12(a)

5
and required by the caselaw. We further hold the trial court fundamentally
erred in instructing the jury “as a matter of procedure” how to fill out the
verdict form for Count 2 based on its verdict on Count 1.
Conclusion
Having 	determined 	that 	the 	trial 	court 	fundamentally 	erred 	in
instructing the jury for deliberation on Count 2 in a manner which violated
due process, the right to a trial by jury, and the standard criminal jury
instructions, we reverse Defendant’s conviction and sentence on Count 2
and remand for further proceedings as to Count 2. On all other arguments
which 	Defendant 	has 	raised 	on 	appeal, 	we 	affirm 	without 	further
discussion.
Affirmed in part, reversed in part, and remanded for further proceedings
as to Count 2.
M AY and GERBER , JJ., concur.
* 	* 	*
Not final until disposition of timely-filed motion for rehearing.