RAY WALTER THOMPSON, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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SCHWARTZ, Judge.
On the authority of Wilson v. State, 359 So. 2d 901 (Fla. 3d DCA 1978), we reject the defendant-appellant’s contention that he was privileged to trespass into the trailer where his wife was staying with a male friend.
Because he made no objections below either to the court’s instructions or to the pertinent verdict form, we do not consider his alternative claim, raised for the first time on appeal, that the elements of the lesser included crime of which he was convicted were not alleged in the information. Under the circumstances of this case, which are very similar to those involved in Andrews v. State, 309 So. 2d 576, 577 (Fla. 1st DCA 1975) (specially concurring opinion), the alleged error was not a fundamental one which may be reviewed notwithstanding the defendant’s failure to preserve the point below. Andrews v. State, supra; see also Smith v. State, 344 So. 2d 905 (Fla. 3d DCA 1977), cert. denied, 353 So. 2d 678 (Fla.1977); McPhee v. State, 254 So. 2d 406 (Fla. 1st DCA 1971); compare Minor v. State, 329 So. 2d 30, 31 (Fla. 2d DCA 1976), and cases cited.
Affirmed.
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RAY v. State, 403 So. 2d 956 (Fla. 1981)…ith v. State, 375 So. 2d 864 (Fla.3d DCA 1979), cert. denied, 383 So. 2d 1202 (Fla.1980); Ray v. State, 374 So. 2d 1002 (Fla.2d DCA 1979); Lumia v. State, 372 So. 2d 525 (Fla.4th DCA 1979), cert. denied, 381 So. 2d 767 (Fla.1980); Thompson v. State, 368 So. 2d 670 (Fla.3d DCA 1979); Jones v. State, 358 So. 2d 37 (Fla.4th DCA), cert. denied, 364 So. 2d 887 (Fla.1978); McPhee v. State, 254 So. 2d 406 (Fla.1st DCA 1971). These cases have supported convictions based on crimes not specifically charged because of i…
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Lumia v. State, 372 So. 2d 525 (Fla. 4th DCA 1979)…e defense was actually based on the theory that while defendant might be guilty of grand larceny, he was not guilty of armed robbery. Defense counsel chose this tactical approach before the jury. Also of application is the case of Thompson v. State, 368 So. 2d 670 (Fla. 3d DCA 1979). Therein, the Third District speaking through Judge Alan Schwartz stated as follows: Because he made no objections below either to the court’s instructions or to the pertinent verdict form, we do not con [*526] sider his alternat…
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Keefer v. State, 397 So. 2d 1181 (Fla. 3d DCA 1981)…le or delivery as charged in the information. We find both (a) that Keefer did not preserve the alleged error for appellate review, see Carter v. State, 380 So. 2d 541 (Fla. 5th DCA 1980), cert. denied, 388 So. 2d 1110 (Fla.1980); Thompson v. State, 368 So. 2d 670 (Fla. 3d DCA 1979), and cases cited; and (b) that, as was squarely held in the case of his co-defendant, Bradshaw v. State, (Fla. 3d DCA Case No. 80-966, opinion filed, February 10, 1981), his contention is substantively incorrect on the facts invol…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- McPHEE v. State, 254 So. 2d 406 (Fla. 1st DCA 1971)
- Minor v. State, 329 So. 2d 30 (Fla. 2d DCA 1976)
- Andrews v. State, 309 So. 2d 576 (Fla. 1st DCA 1975)
- Smith v. State, 344 So. 2d 905 (Fla. 3d DCA 1977)
- Wilson v. State, 359 So. 2d 901 (Fla. 3d DCA 1978)