EUGENE KELLY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
Eugene Kelly was charged with aggravated battery and requested a jury instruction on the maximum sentence for the offense. The trial judge denied the request twice without objection from defense counsel. The appellate court affirmed, holding that Kelly failed to preserve the issue for appeal by not objecting to the trial judge's denial.
Although a trial judge's failure to give a requested instruction on maximum and minimum sentences for an offense charged constitutes error, the defendant failed to preserve the issue for appeal by not objecting to the court's refusal and not stating the grounds for the request, as required by Florida Rule of Criminal Procedure 3.390(d).
[1] A trial court's failure to instruct the jury on the maximum and minimum sentences for the offense charged constitutes error.
[2] An appellate court must restrict its review to questions properly preserved for appeal.
Previewing 2 of 5 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“a trial judge's failure to give a requested instruction on the maximum and minimum sentence for the offense charged constitutes error”
Establishes that the underlying refusal was error as a matter of law, citing Tascano v. State
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceKelly was charged by information with aggravated battery. After the defense rested, defense counsel requested that the trial judge instruct the jury o…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Rule 3.390(d) cases and more on FLexlaw
HOBSON, Acting Chief Judge.
Appellant was charged by information with aggravated battery. After the defense had rested, defense counsel requested the trial judge to instruct the jury on the maximum sentence which could be imposed for the offense charged. The trial judge denied the request; however, the defense counsel did not object to the denial. Subsequently, counsel for the defendant repeated his request and it was again denied without objection. Appellant urges that the refusal to give the requested instruction constituted error.1 Appellee counters that, without an objection, appellant failed to preserve the error, if any, for review. We agree with the appellee and affirm. Initially, we must agree with appellant that a trial judge’s failure to give a requested instruction on the maximum and minimum sentence for the offense charged constitutes error. Tascano v. State, No. 55,394, — So. 2d -(Fla. June 5, 1980). However, an appellate court must restrict itself to a review of those questions properly preserved for appeal.
Florida Rule of Criminal Procedure 3.390(d), provides that a party must object to the giving or the failure to give a requested instruction. Furthermore, that rule requires the objecting party to distinctly state the grounds for his objection. In this same vein, our supreme court noted in Castor v. State, 365 So. 2d 701 (Fla.1978), that a timely objection is required where the error relates to the giving or failing to give a particular jury instruction.
In the instant case, although defense counsel twice requested the instruction concerning maximum penalties, he neither objected to the court’s refusal to give the instruction nor stated the grounds upon which his request was made. Therefore, appellant did not preserve this issue for appeal. Accordingly, the judgment and sentence of the circuit court is affirmed.
CAMPBELL, J., concurs.
GRIMES, J., concurs specially with opinion.
. Appellant also argues that the trial court erred in denying his motion to dismiss on the grounds of double jeopardy and failing to instruct the jury on the lesser included offenses of simple assault and simple battery. We find that both of these arguments are without merit. The latter point is controlled by State v. Abreau, 363 So. 2d 1063 (Fla.1978).
GRIMES, Judge,
concurring specially.
In a case such as this where the court has specifically denied a requested instruction and it is apparent why appellant wished to have the instruction given, I see little purpose in requiring appellant then to make a specific objection in order to protect the record. However, Rule 3.390(d) is quite specific, and the supreme court held in Tas-cano that only those who preserved the point on appeal were entitled to the benefit of a retroactive interpretation of the principle established in that case.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (29 total)
-
Rodriguez v. State, 396 So. 2d 798 (Fla. 3d DCA 1981)…strong presumption” arises of a lack of felonious intent. Maddox v. State, supra, at 38 So. 2d 58. . See, Washington v. State, 392 So. 2d 599 (Fla. 1st DCA 1981) (Wentworth, J., dissenting). . Compare the application of 3.390(d) in Kelly v. State, 389 So. 2d 250 (Fla. 2d DCA 1980) and Bailey v. State, 393 So. 2d 24 (Fla. 3d DCA 1981), to a request for an instruction on penalties, which is mandated only by subsection (a) of the same rule, and which would otherwise not be an appropriate, let alone required, s…
-
Thomas v. State, 419 So. 2d 634 (Fla. 1982)…against Thomas. The trial court agreed to give such instructions, but, upon reconsideration, later refused to do so. The district court found that Thomas had not objected to the court’s failure to instruct on penalties and, based on Kelly v. State, 389 So. 2d 250 (Fla. 2d DCA 1980), and Castor v. State, 365 So. 2d 701 (Fla.1978), held that the issue had not been preserved for appeal. In Tascano v. State, 393 So. 2d 540 (Fla.1980), we held that giving an instruction requested pursuant to rule 3.390(a) is man…
-
Hubbard v. State, 411 So. 2d 1312 (Fla. 1st DCA 1981)…enalty instruction when requested also mandates that counsel object by, “[1] stating distinctly the matter of which he objects and [2] the grounds of his objection.” Neither of these two requirements were met in the instant case. In Kelly v. State, 389 So. 2d 250, 251 (Fla. 2d DCA 1980), the court correctly stated the rule: Florida Rule of Criminal Procedure 3.390(d), provides that a party must object to the giving or the failure to give a requested instruction. Furthermore, that rule requires the objecting…
Previewing 3 of 29 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Castor v. State, 365 So. 2d 701 (Fla. 1978)
- Grant v. State, 363 So. 2d 1063 (Fla. 1978)