CHRIS DAVENPORT, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Davenport appeals his conviction for attempted robbery, challenging the trial court's refusal to instruct the jury on certain lesser included offenses and arguing error in sentencing. The appellate court found the jury instruction issue was waived due to lack of objection, but reversed on the independent ground that the trial court failed to apply the mandatory Youthful Offender Act sentencing provisions.
The appellate court did not reach the jury instruction issue because Davenport failed to preserve it through specific objection as required by Florida Rule Criminal Procedure 3.390(d). However, the court held that the trial court erred in failing to sentence Davenport as a youthful offender, as he met all statutory prerequisites and the Act provides for mandatory classification under those circumstances.
[1] Failure to object to a trial court's refusal to give jury instructions on lesser included offenses preserves the issue for appeal.
[2] A trial court has a mandatory obligation to sentence a defendant under the Youthful Offender Act when the defendant meets all statutory prerequisites.
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Join FLexlaw to unlock all legal intelligence“Florida Rule Criminal Procedure 3.390(d), in no uncertain terms, requires an objection to preserve the issue for appeal.”
Establishes the procedural requirement that Davenport failed to meet regarding the jury instruction issue, resulting in waiver of that claim.
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Join FLexlaw to unlock all legal intelligenceDavenport was charged by information with armed robbery with a deadly weapon. At trial, the judge instructed the jury on robbery, attempted robbery, a…
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PER CURIAM.
Davenport appeals a judgment and sentence based upon a jury verdict finding Davenport guilty of attempted robbery. The appellant had been charged by information with armed robbery with a deadly weapon. The trial judge instructed the jury on the offenses of robbery, attempted robbery, and petit larceny. The judge refused to give appellant’s requested instructions on the lesser offenses of battery, aggravated battery, assault, aggravated assault and assault with intent to commit robbery. The appellant contends that the trial court committed reversible error by failing to give the above lesser included offenses. We do not reach this issue, however, because after a careful review of the record we are unable to find a specific objection by appellant pertaining to the court’s refusal to instruct the lesser included offenses.1 Florida Rule Criminal Procedure 3.390(d), in no uncertain terms, requires an objection to preserve the issue for appeal. Washington v. State, 392 So. 2d 599 (Fla. 1st DCA 1981); Kelly v. State, 389 So. 2d 250 (Fla. 2d DCA 1980); White v. State, 324 So. 2d 115 (Fla. 3d DCA 1976).
However, the trial court erred in failing to sentence appellant pursuant to the Youthful Offender Act, Section 958.-04(2), Florida Statutes. Since the appellant met all the requirements of Section 958.-04(2), the trial court had a mandatory obligation to sentence him under the Act. See Goodson v. State, 392 So. 2d 1335 (Fla. 1st DCA 1980) (reh. den.); Killian v. State, 387 So. 2d 385 (Fla. 2d DCA 1980).
Since we certified an identical question in Goodson on the issue whether the trial court was required to sentence the defendant there as a youthful offender, we certify the same question here to the Florida Supreme Court as one of great public importance:
Does Section 958.04(2), Florida Statutes (1979), provide for mandatory classification if certain statutory prerequisites are satisfied?
The cause is remanded for resentencing in a manner consistent with this opinion.
ERVIN and SHAW, JJ., concur. WENTWORTH, J., concurring and dissenting with opinion.
. We recognize the rule that the failure to instruct on the next immediate lesser included offense (one step removed) is prejudicial error. See State v. Abreau, 363 So. 2d 1063 (Fla.1978); Reddick v. State, .394 So. 2d 417 (Fla.1981). Neither Abreau nor Reddick, however dealt with the method of preserving the issue for appeal.
WENTWORTH, Judge,
concurring and dissenting.
I concur in the majority opinion insofar as it requires that appellant be sentenced pursuant to § 958.04(2), the Youthful Offender Act; however, I disagree with the majority conclusion that the jury instruction issue has not been preserved for appeal. While Fla.R.Crim.P. 3.390(d) requires a specific objection to preserve the issue, the Rule further indicates, at subsection (e), that “no exception need be made” to the court’s ruling. In the present case the trial judge held an off-the-record conference on jury instructions after noting that if agreement could not be reached he would then “let counsel state their objection in the record.” After the conference defense counsel indicated, “for the record,” that he requested a jury instruction on various lesser included offenses, which instruction the judge thereafter formally refused. Defense counsel’s statement was sufficient to “apprise the trial judge of the putative error” as required by Castor v. State, 365 So. 2d 701 (Fla.1978), and in the circumstances of this case, as in Washington v. State, 392 So. 2d 599 (Fla. 1st DCA 1981) (dissenting opinion), I would conclude that the issue was adequately preserved for appellate review.
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Hubbard v. State, 411 So. 2d 1312 (Fla. 1st DCA 1981)…in the instant appeal. This development has resulted in what we view as a conflict between the opinion on rehearing in Holland and earlier opinions of this Court, including Washington v. State, 392 So. 2d 599 (Fla. 1st DCA 1981), Davenport v. State, 396 So. 2d 232 (Fla. 1st DCA 1981), and Spurlock v. State, 403 So. 2d 435 (Fla. 1st DCA 1981). Our quest to resolve the issue begins with reference to Florida Rules of Criminal Procedure 3.390(d): No party may assign as error grounds of appeal the giving or the…
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Skipper v. State, 400 So. 2d 797 (Fla. 1st DCA 1981)…ctions by the court, the record contains no objection in accordance with Rule 3.390(d), Florida Rules of Criminal Procedure. Accordingly, reversible error is not presented. Washington v. State, 392 So. 2d 599 (Fla. 1st DCA 1981), Davenport v. State, 396 So. 2d 232 (Fla. 1st DCA 1981). Appellant also contends that the court erred in denying his challenge of a juror for cause. On voir dire, the juror [*798] stated that he was attending school preparatory to going into work as a law enforcement officer, and wa…
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Williams v. State, 399 So. 2d 999 (Fla. 3d DCA 1981)…l and the issue has not been preserved for review.” See also the dissatisfaction expressed, e. g., by Judge Grimes, concurring specially in Kelly v. State, supra, and Judge Wentworth dissenting in Washington v. State, supra, and Davenport v. State, 396 So. 2d 232 (Fla. 1st DCA 1981), with any requirement that objection be made to the trial court’s refusal to give a requested instruction. Their view is that implicit in every request for an instruction is an objection to the failure to give it, and that there…
Previewing 3 of 5 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)
- Goodson v. State, 392 So. 2d 1335 (Fla. 1st DCA 1980)
- Reddick v. State, 394 So. 2d 417 (Fla. 1981)
- Kelly v. State, 389 So. 2d 250 (Fla. 2d DCA 1980)
- White v. State, 324 So. 2d 115 (Fla. 3d DCA 1975)
- Forrest J. Killian, III v. State, 387 So. 2d 385 (Fla. 2d DCA 1980)
- Washington v. State, 392 So. 2d 599 (Fla. 1st DCA 1981)