THEORDORE AGUSTUS BASSETT, A/K/A EARL LEE SMITH, 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.
The court held that failure to instruct on maximum and minimum sentences is not reversible error if a timely and specific objection was not made.
Appellant's trial counsel objected after the jury retired to the judge's failure to instruct on maximum and minimum sentences. The trial judge noted t…
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 Florida Rule Of Criminal Procedure 3.390(A) cases and more on FLexlaw
PER CURIAM.
After the jury retired to deliberate, appellant’s trial counsel objected to the failure of the judge to charge the jury on the maximum and minimum sentences which could be imposed for the offense for which appellant was on trial. The trial judge then directed the record to show that the defendants requested the maximum penalty be given and that the court denied that request. In Murray v. State, 378 So. 2d 111 (Fla. 5th DCA 1980), and Williams v. State, 378 So. 2d 902 (Fla. 5th DCA 1980), this court held that the failure to give this instruction when requested is error, but not reversible error. Subsequently the Florida Supreme Court, in Tascano v. State, 393 So. 2d 540 (Fla.1980) held the rule to be mandatory and a failure to instruct as required to be reversible error. A rehearing in Tascano is still pending.
However, we do not believe Tascano controls the disposition of this case because, while Florida Rule of Criminal Procedure 3.390(a) requires such an instruction, another subsection of the same rule, 3.390(d), prohibits the appeal of a failure to give an instruction unless there was an objection, before the jury retired to consider its verdict, distinctly stating the matter and grounds of the objection. We realize, as did the Second District Court of Appeal in Kelly v. State, 389 So. 2d 250 (Fla. 2d DCA 1980), that this is a technical application of this rule. However, subdivision (d) of this rule is as specific and clear as subdivision (a) and it is not unfair for one who claims the advantage of the first part to be required to strictly comply with the latter part and to make a proper and timely objection.
Accordingly, appellant’s appointed counsel’s motion to withdraw is granted, Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and the judgment and sentence is
AFFIRMED.
ORFINGER, SHARP and COWART, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Gonzalez v. State, 399 So. 2d 35 (Fla. 3d DCA 1981)…. 2d 747 (Fla. 3d DCA 1975); Codie v. State, 313 So. 2d 754 (Fla.1975); Bristow v. State, 338 So. 2d 553 (Fla. 3d DCA 1976); Atkinson v. State, 378 So. 2d 324 (Fla. 3d DCA 1980); Teague v. State, 390 So. 2d 405 (Fla. 5th DCA 1976); Bassett v. State, 392 So. 2d 1025 (Fla. 5th DCA 1981); Knight v. State, 394 So. 2d 997 (Fla. 3d DCA 1981); Fla.R.Crim.P. 3.390(d).…
-
Preston v. State, 397 So. 2d 712 (Fla. 5th DCA 1981)…ail to find in the record any objection to the trial court’s refusal to give the requested instruction, as required by Florida Rules of Criminal Procedure, 3.390(d). When no objection is made, the issue is not preserved for appeal. Bassett v. State, 392 So. 2d 1025 (Fla. 5th DCA 1981); Kelly v. State, 389 So. 2d 250 (Fla. 2d DCA 1980). Where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one,…
-
Babb v. State, 397 So. 2d 399 (Fla. 5th DCA 1981)…PER CURIAM. See Bassett v. State, 392 So. 2d 1025 (Fla.5th DCA 1981). AFFIRMED. FRANK D. UPCHURCH, SHARP and COWART, JJ., concur.…
Previewing 3 of 9 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Anders v. California, 386 U.S. 738 (U.S. 1967)
- Tascano v. State, 393 So. 2d 540 (Fla. 1980)
- Kelly v. State, 389 So. 2d 250 (Fla. 2d DCA 1980)
- Murray v. State, 378 So. 2d 111 (Fla. 5th DCA 1980)
- Williams v. State, 378 So. 2d 902 (Fla. 5th DCA 1980)