DAVID ALPHONSO SMITH, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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David Smith was convicted of attempted sexual battery and robbery as lesser included offenses of the crimes charged. The appellate court rejected all three of Smith's contentions on appeal, finding no error in the jury instructions, the lesser included offense instruction, or the definition of robbery charge.
The court held that all three issues lacked merit. First, Smith was precluded from challenging the lesser included offense conviction because his counsel affirmatively subscribed to the instruction. Second, no specific jury charge on identity is necessary or required. Third, no specific intent to deprive requirement exists under the current definition of robbery in Florida statute.
[1] A defendant waives the right to challenge a conviction for a lesser included offense if defense counsel affirmatively agrees to jury instructions on that offense.
[2] A specific jury instruction on identity is not required when standard jury instructions are provided.
Previewing 2 of 3 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“The record shows, however, that defense counsel not only did not object, but affirmatively subscribed to the court's instructing the jury on the offense in question. The appellant is therefore precluded from now contending that he was improperly convicted of a crime not charged in the information.”
Establishes the waiver doctrine preventing challenge to lesser included offense instruction when counsel affirmatively agrees to it.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceSmith was charged with attempted sexual battery with use of a deadly weapon and armed robbery. The jury convicted him of the lesser included offenses …
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SCHWARTZ, Judge.
Smith was charged with attempted sexual battery with the use of a deadly weapon and armed robbery. The jury found him guilty of attempted sexual battery with the use of physical force not likely to cause serious personal injury and robbery with a weapon, as lesser included offenses of the respective crimes charged. None of the three issues raised in this appeal from the convictions and sentences for those crimes has merit.
The appellant first contends, citing Harris v. State, 338 So. 2d 800 (Fla. 3d DCA 1976)that the sexual battery charge of which he was convicted, which is proscribed by Section 794.011(5), Fla.Stat. (1975), is not a lesser included offense of the one charged in the information, as defined by Section 794.011(3), Fla.Stat. (1975). The record shows, however, that defense counsel not only did not object, but affirmatively subscribed to the court’s instructing the jury on the offense in question. The appellant is therefore precluded from now contending that he was improperly convicted of a crime not charged in the information. Odom v. State, 375 So. 2d 1079 (Fla. 1st DCA 1979); Ray v. State, 374 So. 2d 1002 (Fla. 2d DCA 1979); Lumia v. State, 372 So. 2d 525 (Fla. 4th DCA 1979); Thompson v. State, 368 So. 2d 670 (Fla. 3d DCA 1979); Jones v. State, 358 So. 2d 37 (Fla. 4th DCA 1978), cert. denied, 364 So. 2d 887 (Fla.1978); 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).
Smith next complains of the trial court’s refusal to give, in addition to the standard jury instructions, a specific jury charge on the issue of identity. For the reasons well stated by Judge Moore, dissenting from the denial of rehearing in Freeman v. State, 371 So. 2d 114 (Fla. 4th DCA 1979), we adhere to our holdings in Cruz v. State, 310 So. 2d 360 (Fla. 3d DCA 1975) and Yost v. State, 243 So. 2d 469 (Fla. 3d DCA 1971) that no such instruction is necessary or required. See also Nelson v. State, 362 So. 2d 1017, 1022 (Fla. 3d DCA 1978), and cases cited.
Finally, we reject the defendant’s contention that the trial judge committed fundamental error in giving, without objection, the standard jury instruction on the definition of robbery, No. 2.07, without also inserting the requirement of a specific intent to deprive the possessor of his property. Bell v. State, 354 So. 2d 1266 (Fla. 3d DCA 1978), establishes that no such requirement exists under the present definition of the crime of robbery as contained in Sec. 812.13, Fla.Stat. (1975). See also DeCastro v. State, 360 So. 2d 474 (Fla. 3d DCA 1978), cert. denied, 368 So. 2d 1365 (1979).1
Affirmed.
. It is not necessary to decide whether, even were the rule otherwise, the omission would constitute fundamental error which may be considered notwithstanding the lack of objection below. But see Castor v. State, 365 So. 2d 701 (Fla.1978); Simpkin v. State, 363 So. 2d 45 (Fla. 3d DCA 1978).
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited (15 total)
- Castor v. State, 365 So. 2d 701 (Fla. 1978)
- Yost v. State, 243 So. 2d 469 (Fla. 3d DCA 1971)
- McPHEE v. State, 254 So. 2d 406 (Fla. 1st DCA 1971)
- Grady Nelson v. State, 362 So. 2d 1017 (Fla. 3d DCA 1978)
- Jones v. State, 358 So. 2d 37 (Fla. 4th DCA 1978)
- Bell v. State, 354 So. 2d 1266 (Fla. 3d DCA 1978)
- DeCASTRO v. State, 360 So. 2d 474 (Fla. 3d DCA 1978)
- RAY v. State, 374 So. 2d 1002 (Fla. 2d DCA 1979)
- Hollis Yates Odom v. State, 375 So. 2d 1079 (Fla. 1st DCA 1979)
- Thompson v. State, 368 So. 2d 670 (Fla. 3d DCA 1979)