JAMES E. WILSON, JR., APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The defendant was charged with battery upon a law enforcement officer but convicted of assault upon a law enforcement officer after the trial court instructed the jury on the assault charge. The appellate court affirmed the conviction, holding that while the instruction was erroneous, the error was not fundamental and the defendant's objection was procedurally insufficient to preserve the issue for review.
The trial court's instruction on assault was error because the battery charge did not include all elements of assault. However, the error was not fundamental because assault is a lesser-included offense that may be included in battery depending on the evidence. Additionally, the defendant's objection was insufficient to preserve the issue for review because he failed to state the proper grounds for his objection as required by procedural rules.
[1] A jury instruction on an offense not alleged in the charging information is error if the offense is not necessarily included within the charged offense.
[2] A general objection to a jury instruction is insufficient to preserve for appellate review the issue of whether the instruction was improper because the charged offense d…
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Join FLexlaw to unlock all legal intelligence“An assault upon a law enforcement officer is an offense which may or may not be included in an offense of battery upon a law enforcement officer, depending upon the wording of the charge and the evidence.”
Establishes the foundational rule that assault's inclusion in battery depends on charge wording and evidence
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Join FLexlaw to unlock all legal intelligenceJames E. Wilson, Jr. was charged with battery upon a law enforcement officer. At trial, over the defendant's general objection, the court instructed t…
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WATSON, Judge.
The defendant was charged with battery upon a law enforcement officer. Over defendant’s general objection, the court instructed the jury on the crime of assault upon a law enforcement officer. The defendant was convicted of an assault upon a law enforcement officer. An assault upon a law enforcement officer is an offense which may or may not be included in an offense of battery upon a law enforcement officer, depending upon the wording of the charge and the evidence. Brown v. State, 206 So. 2d 377 (Fla.1968). There was evidence of an assault upon a law enforcement officer in this case, but the information charging battery upon a law' enforcement officer did not include all of the elements of an assault. Therefore, it was error for the court to instruct the jury on the offense of assault upon a law enforcement officer. Defendant can only assert the error on appeal if he made a timely objection to the instruction or if the error is fundamental error. Defendant’s objection was timely. He failed, however, to state the grounds of his objection as required by Rule 3.390(d), Florida Rules of Criminal Procedure. Defendant’s motion for new trial alleged the court had erred in instructing the jury on the offense of assault upon a law enforcement officer on the ground that the offense was not established by the evidence. At no time did defendant assert as a ground for his objection the failure of the state to allege the crime of which defendant was convicted. Therefore, though timely made, defendant’s objection was insufficient to preserve the point for review.
“ ‘Fundamental error,’ which can be considered on appeal without objection in the lower court, is error which goes to the foundation of the case or goes to the merits of the cause of action. The Appellate Court should exercise its discretion under the doctrine of fundamental error very guardedly.” Sanford v. Rubin, 237 So. 2d 134, 137 (Fla.1970). It is a limited exception to the requirement that a trial judge must be given the opportunity to correct his or her errors. Castor v. State, 365 So. 2d 701 (Fla.1978).
In Johnson v. State, 226 So. 2d 884 (Fla.2d DCA 1969), Judge McNulty distinguished between a conviction of an offense included or includable in the offense charged and a conviction of an offense which is not, and cannot be, included in the offense charged. The latter is fundamental error; the former is not.
This Court held in Carter v. State, 380 So. 2d 541 (Fla. 5th DCA 1980), that it was not fundamental error to instruct the jury on a Brown category four lesser offense even though the pleading did not allege the lesser offense.
Accordingly, the judgment is AFFIRMED.
ORFINGER and COBB, JJ., concur.
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Citator
Cited By (14 total)
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RAY v. State, 403 So. 2d 956 (Fla. 1981)…1220 (1976). Contrary to the cases that Ray relies on, the district courts have also found that instructing on a crime not charged does not necessarily constitute reversible error. Achin v. State, 387 So. 2d 375 (Fla.4th DCA 1980); Wilson v. State, 383 So. 2d 670 (Fla.5th DCA 1980); Carter v. State, 380 [*961] So. 2d 541 (Fla.5th DCA 1980); Odom v. State, 375 So. 2d 1079 (Fla.1st DCA 1979), cert. denied, 386 So. 2d 640 (Fla.1980); Smith v. State, 375 So. 2d 864 (Fla.3d DCA 1979), cert. denied, 383 So. 2d 120…
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Torrence v. State, 440 So. 2d 392 (Fla. 5th DCA 1983)…Jr., concur. SHARP and COWART, JJ., dissent with opinion. . This count was nol prossed. . This matter has been determined en banc because of a potential conflict with Carter v. State, 380 So. 2d 541, 542 (Fla. 5th DCA 1980), and Wilson v. State, 383 So. 2d 670 (Fla. 5th DCA 1980). . In approving the new standard jury instructions and schedule of lesser included offenses in 1981, the supreme court renumbered and reduced the Brown categories to two: 1. Offenses necessarily included in the offense charged,…1 / 3
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Hubbard v. State, 411 So. 2d 1312 (Fla. 1st DCA 1981)
Previewing 3 of 14 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Brown v. State, 206 So. 2d 377 (Fla. 1968)
- Castor v. State, 365 So. 2d 701 (Fla. 1978)
- Sanford v. Rubin, 237 So. 2d 134 (Fla. 1970)
- Johnson v. State, 226 So. 2d 884 (Fla. 2d DCA 1969)
- Allen v. State, 380 So. 2d 541 (Fla. 5th DCA 1980)