Gabriel v. State of Florida
CourtDistrict Court of Appeal of Florida
Date FiledSeptember 23, 2026
Docket1D2023-3107
StatusPublished
📰 News Coverage: Read the LAWS.com news report on this case
Full Opinion
FIRST DISTRICT COURT OF APPEAL
STATE OF FLORIDA
_____________________________
No. 1D2023-3107
_____________________________
ANTHONY M. GABRIEL,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
_____________________________
On appeal from the Circuit Court for Okaloosa County.
John Jay Gontarek, Judge.
September 23, 2026
ON MOTION FOR WRITTEN OPINION
PER CURIAM.
We grant Appellant Anthony M. Gabriel’s motion for written
opinion, withdraw our per curiam affirmance dated November 5,
2025, and substitute the following opinion in its place. Gabriel’s
motion filed November 19, 2025, is otherwise denied.
Gabriel appeals his convictions for burglary of a dwelling
while armed with a firearm and possession of a firearm by a
convicted felon. We affirm the convictions but write to address
Gabriel’s claim that the court erred in giving the standard jury
instruction addressing abnormal mental condition (AMC).
I
On the night of August 11, 2021, Gabriel entered the home of
Veston Lane Wyatt. Gabriel did not have Wyatt’s permission to be
there. Wyatt was startled by the appearance of Gabriel in his
bedroom, as Gabriel was wearing all black and was armed with a
firearm. Wyatt grabbed his bedside pistol and held Gabriel at
gunpoint until law enforcement arrived. In addition to the firearm,
which was reported stolen, Gabriel had a backpack with rope in it.
Gabriel was arrested and charged with burglary and possession of
a firearm as indicated above.
At trial, Gabriel’s defense was that he was being chased by an
animal or person (the story changed), and that it was out of
necessity that he surreptitiously entered Wyatt’s home in the
middle of the night. * In opening statement, Gabriel’s counsel told
the jury, “I think that the evidence is going to show you . . . that he
was incoherent and terrified out of his mind and that he was
asking for help[.]” Later in the trial, the deputy who encountered
Gabriel agreed with counsel that Gabriel had been incoherent.
During the charge conference, the State asked the trial court
to instruct the jury that “[m]ental illness, an abnormal mental
condition, or diminished mental capacity is not a defense to any
crime in this case.” See Fla. Std. Jury Instr. (Crim.) 3.6(p). The
State noted that there was evidence relating to Gabriel’s “mental
condition at that time” and that based on this, the jury should be
“informed that mental illness and abnormal mental condition or
diminished mental capacity is not a defense to any crime in this
case[.]” Gabriel objected. Despite Gabriel’s claim in opening that
the evidence would show that Gabriel had been “incoherent and
terrified out of his mind,” Gabriel’s counsel argued that there had
* Gabriel requested a jury instruction on the necessity defense,
which the trial court denied. Gabriel challenges this denial on
appeal. Because any error in failing to provide the necessity
instruction would be harmless under the facts of this case (Gabriel
wearing all black, armed with a firearm, carrying a backpack full
of rope, but claiming an animal or person was chasing him), we
reject this argument without further comment. See Potter v. State,
304 So. 3d 1270, 1276 (Fla. 3d DCA 2020).
2
been no reference to Gabriel being incoherent, or to mental illness,
abnormal mental condition, or diminished mental capacity. The
court overruled the objection and agreed to give the requested
instruction, noting that the record contained “some inference that
[Gabriel] was rambling and . . . talking incoherently and bringing
up different things that [did not] seem to make sense,” and that “it
could be inferred that he had some kind of mental [condition].”
II
Generally, a court’s decision to instruct the jury on a
particular matter is reviewed for abuse of discretion. See e.g., Hunt
v. State, 428 So. 3d 43, 52 (Fla. 2025). And while a court may not
give a jury instruction that has no factual basis in the record, see
Kelsey v. State, 152 So. 3d 1266, 1267 (Fla. 1st DCA 2014), “[a] jury
is likely to disregard an option simply unsupported by the
evidence.” Reed v. State, 208 So. 3d 1231, 1235 (Fla. 1st DCA 2017)
(quotation omitted). For this reason, giving a jury instruction that
is not supported by any record evidence can be harmless error. Id.
Section 775.027, Florida Statutes, establishes the insanity
defense, providing that insanity is a defense to a criminal charge
when, at the time of the offense, the defendant had a mental
infirmity, disease, or defect, and that because of that condition,
either did not know what he or she was doing or its consequences
or did not know that what he or she was doing was wrong.
§ 775.027(1), Fla. Stat. The statute specifies that insanity, as it
defines this term, is the exclusive method by which a criminal
defendant can assert a defense based on mental condition.
Specifically, “[m]ental infirmity, disease, or defect does not
constitute a defense of insanity except as provided in this
subsection.” Id. This language forecloses any other mental
condition evidence as a defense to a criminal charge. Id.; see also,
Chestnut v. State, 538 So. 2d 820 (Fla. 1989) (holding that
“evidence of abnormal mental condition not constituting legal
insanity” is not admissible “for purposes of proving either that
accused could not or did not entertain the specific intent or state
of mind essential to proof of the offense, in order to determine
whether crime charged, or lesser degree thereof, was in fact
committed”); Occhicone v. State, 570 So. 2d 902 (Fla. 1990); Evans
v. State, 946 So. 2d 1 (Fla. 2006).
3
Florida Standard Jury Instruction (Crim.) 3.6(p),
acknowledges this statutory requirement and informs a jury that,
consistent with statute, a particular fact is irrelevant to its
deliberations. Logically, the record evidence necessary to support
a jury instruction that a certain fact is not relevant is different
from the record evidence necessary to support a jury instruction
related to the elements of a crime or to a defense to that crime.
Suffice it to say, we find that the evidence in this case was
sufficient for the court to inform the jury that AMC was not a
defense, especially in light of Gabriel’s own characterization of the
evidence that he was “incoherent and terrified out of his mind” at
the time of the offense. See, e.g., Rodriguez-Barnes v. State, 419 So.
3d 1174 (Fla. 1st DCA 2025) (holding that AMC standard
instruction was appropriate where the instruction accurately
stated the law, the facts supported giving the instruction, and the
instruction was necessary to prevent jury from improperly
considering mental health evidence as negating specific intent).
Moreover, even if the record displayed insufficient evidence of
AMC to justify the instruction, we would conclude that the jury
was likely to ignore an instruction that was not supported by the
evidence. See Reed¸ 208 So. 3d at 1235.
Gabriel disputes this conclusion, arguing that Perry v. State,
256 So. 3d 888 (Fla. 4th DCA 2018), supports his argument. In
Perry, the appellant argued that giving the AMC standard
instruction—an instruction that does nothing but accurately
convey the law—“plays upon the stigma, fear and prejudice
associated with the mentally ill.” Perry, 256 So. 3d at 893. The
Fourth District apparently accepted this argument, holding that
the AMC instruction was “the judge’s comment on the defendant”
that “interfered with the jury’s determination of specific intent
based on its evaluation of all the evidence in the case.” Id. The
Perry court suggested the standard instruction was meant to
remind jurors how to evaluate expert mental-health evidence, and
without any such evidence, was “tantamount to a comment on the
evidence, a suggestion that Perry suffered from ‘mental illness or
an abnormal mental condition or diminished mental capacity.’” Id.
at 895 (emphasis in original).
For three reasons, however, Perry has no application here.
First, the evidence in this case supported the AMC instruction
4
more than the evidence in Perry did. Instead of confusing or
misleading the jury, as alleged in Perry, the AMC instruction here
provided clarity by accurately informing them that AMC is not a
defense in Florida. Accordingly, we find that a correct statement of
the law on AMC did not mislead the jury in this case or “cause[]
them to arrive at a conclusion that otherwise would not have been
reached by them[.]” Holman Live Stock Co. v. Louisville & N.R.
Co., 87 So. 750, 751 (Fla. 1921).
Second, we disagree with the suggestion that the AMC
standard instruction should only be given when the defendant
presents expert testimony of the defendant’s mental state.
Instructions are appropriate when they relate to the evidence at
trial. The fact that evidence of AMC generally cannot constitute a
criminal defense applies regardless of how the evidence of AMC is
presented.
Finally, we do not share the Fourth District’s concern that the
AMC standard instruction constitutes a judicial comment on a
defendant who may suffer from a mental illness but fails to meet
the statutory definition of insanity. In our view, a jury should know
that a statute, duly enacted by the Florida Legislature, prohibits
evidence of “mental infirmity, disease, or defect” that does not rise
to the level of insanity. § 775.027(1), Fla. Stat. A trial court
instructing the jury on AMC is not commenting on the evidence;
rather, the court is performing an essential function: telling the
jury what the law is and what it is not.
Ultimately, we will not reverse a conviction simply based on
speculation that the jury might have considered an accurate
instruction as a “comment on the evidence.” We follow our supreme
court’s holding in Walker v. State, where the court considered a
claim that the instruction on possession of recently stolen property
“constitutes an impermissible comment on the evidence.” 896 So.
2d 712, 714 (Fla. 2005). The court rejected the claim, accepting the
State’s argument that “the basis for giving the instruction was
section 812.022(2), not the trial court’s opinion of the evidence[,]”
and that “the trial court did not state an opinion regarding
Walker’s knowledge, did not express any thoughts about how
Walker’s possession of the stolen property or his explanation of
that possession demonstrated knowledge, did not distort or add to
5
the evidence, and did not show partisanship.” Id. The same
analysis applies to the AMC standard instruction here.
AFFIRMED.
LEWIS, ROWE, and WINOKUR, JJ., concur.
_____________________________
Not final until disposition of any timely and
authorized motion under Fla. R. App. P. 9.330 or
9.331.
_____________________________
Hani Demetrious and Robert David Malove of the Law Office of
Robert David Malove, P.A., Fort Lauderdale, for Appellant.
James Uthmeier, Attorney General, and Darcy Townsend,
Assistant Attorney General, Tallahassee, for Appellee.
6