HARRISON PINDER, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Defendant Pinder appealed his aggravated assault conviction, challenging whether the evidence sufficiently established that the weapon used was a 'firearm' under Florida law, which triggered a mandatory three-year minimum sentence. The court affirmed, finding the insufficiency claim was procedurally barred because the defendant failed to raise a specific objection at trial.
The court did not reach the merits of the insufficiency claim because the issue was not properly preserved for review. The defendant's failure to raise a specific objection or motion asserting the particularized contention at trial barred appellate review of this issue.
[1] An appellate court will not consider an issue on appeal if it was not properly preserved for review by an objection or motion in the trial court.
[2] A claim of error may be deemed waived on appeal if it could have been obviated by additional testimony or clarification at the trial level.
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Join FLexlaw to unlock all legal intelligence“We are unable to reach the merits of this question because the issue was not properly preserved for review by any objection or motion which asserted this particularized contention below.”
Establishes the procedural bar preventing appellate review of the insufficiency of evidence claim
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Join FLexlaw to unlock all legal intelligencePinder was convicted of aggravated assault. The only evidence concerning whether the weapon was a firearm came from the victim's testimony that Pinder…
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SCHWARTZ, Judge.
The only point presented on this appeal from an aggravated assault conviction is the alleged insufficiency of the evidence to support the three-year minimum mandatory sentence required by Section 775.087(2) Fla.Stat. (1979) because the crime was committed with a “firearm.” The defendant contends that the only evidence on the issue1 — the victim’s testimony that the defendant was carrying what she described as a “handgun” or a “revolver-type of gun” —did not justify the determination that the instrument in question was in fact a “firearm,” as defined in Section 790.001(6) Fla. Stat. (1979) rather than a toy pistol. See, Miles v. State, 338 So. 2d 547 (Fla.3d DCA 1976).
We are unable to reach the merits of this question because the issue was not properly preserved for review by any objection or motion which asserted this particularized contention below.2 De La Cova v. State, 355 So. 2d 1227 (Fla.3d DCA 1978), cert, denied, 361 So. 2d 831 (Fla.1978), and cases cited. This rule is applicable and controlling in this case because of the real possibility that if the claim had been brought to the attention of the court and the prosecution, it might well have been obviated by the introduction of additional testimony — as, for example, by the victim’s answer to a single specific question as to whether the implement in Pinder’s hand was or was not a toy. We will not reverse on the basis of an initial appellate assertion of alleged error which even may have been cured3 if advanced at the time of trial. See, Marks v. Delcastillo, 386 So. 2d 1259, 1266-67 (Fla.3d DCA 1980), review denied, 397 So. 2d 778 (Fla.1981).
Affirmed.
. The “gun” itself was never recovered.
. The defense did contend that the evidence did not show that the gun was “capable of firing a projectile.” Under Sec. 790.001(6), however, which defines a firearm as including even the frame or receiver of such a weapon, no such showing is necessary. Machado v. State, 363 So. 2d 1132 (Fla.3d DCA 1978), cert, denied, 373 So. 2d 459 (Fla. 1979).
. By the very “act” of not objecting, the party who does not properly preserve error below necessarily takes his chances as to whether there was in fact any way in which the objection could have been obviated; in this case, whether the victim was indeed able to differentiate between a firearm and a toy. In other words, fundamental error may exist only when, as an essential precondition, it clearly and affirmatively appears that the result could not have been affected by the failure to object. See, Pait v. State, 112 So. 2d 380 (Fla. 1959); Marks v. Delcastillo, infra, 386 So. 2d at 1266-68.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (19 total)
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Williams v. State, 400 So. 2d 542 (Fla. 3d DCA 1981)…articular offense. Quite different questions concerning the necessity and manner of preserving that contention below are presented in such an instance. Compare, e. g., Negron v. State, 306 So. 2d 104, 107-109 (Fla.1974) with, e. g., Finder v. State, 396 So. 2d 272 (Fla. 3d DCA 1981). . We distinguish, as inapplicable to the present situation, the cases which find fundamental error when the instructions completely fail to define or explain either the crime charged, Williams v. State, 366 So. 2d 817 (Fla. 3d D…
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Whitehead v. State, 446 So. 2d 194 (Fla. 4th DCA 1984)…y to correct the error. Thus unless this sentencing error is fundamental it will be deemed to have been waived. The district courts have not been uniform in their treatment of this particular sentencing error. The third district in Pinder v. State, 396 So. 2d 272 (Fla. 3d DCA 1981) refused to reach the merits of an assertion of error of this type “because the issue was not properly preserved for review by any objection or motion which asserted this particularized contention below.” In essence the court decli…
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DeFREITAS v. State, 701 So. 2d 593 (Fla. 4th DCA 1997)…ter that neither rebuke nor retraction may entirely destroy their sinister influence,” a new trial should be granted despite the lack of objection. Id. 98 So. at 612; see Pacifico v. State, 642 So. 2d 1178, 1184 (Fla. 1st DCA 1994); Pinder v. State, 396 So. 2d 272, 273 n. 3 (Fla. 3d DCA 1981). Admittedly, the concept of “fundamental error” is a difficult one to define, partially because of the courts’ unwillingness to recognize the narrowness of the doctrine. See Hagan v. Sun Bank of Mid-Florida, N.A., 666 S…
Previewing 3 of 19 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- In re Florida Appellate Rules, 112 So. 2d 380 (Fla. 1959)
- Marks v. Delcastillo, 386 So. 2d 1259 (Fla. 3d DCA 1980)
- DE LA Cova v. State, 355 So. 2d 1227 (Fla. 3d DCA 1978)
- MacHado v. State, 363 So. 2d 1132 (Fla. 3d DCA 1978)
- Miles v. State, 338 So. 2d 547 (Fla. 3d DCA 1976)