SAMUEL SAPP, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Appellant Sapp argued on appeal that Florida's criminal procedure rule requiring judges to instruct juries on maximum and minimum penalties became mandatory after a 1977 rule change. The court affirmed the conviction, finding Sapp invited error by explicitly telling the trial court the rule was discretionary before taking the opposite position on appeal.
The court held that while the rule change did render the penalty instruction requirement mandatory, Sapp forfeited relief through invited error because he affirmatively represented to the trial court that the rule was discretionary and failed to preserve the issue for appeal by not asserting the mandatory nature of the amended rule.
[1] A rule change substituting "shall" for "must" can render a previously directory rule mandatory.
[2] A defendant who affirmatively argues a rule is directory cannot later claim on appeal that the rule is mandatory.
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Join FLexlaw to unlock all legal intelligence“The presiding judge shall charge the jury only upon the law of the case at the conclusion of argument of counsel and upon request of either the State or the defendant the judge shall include in said charge the maximum and minimum sentences which may be imposed (including probation) for the offense for which the accused is then on trial.”
The amended 1977 rule text showing the mandatory language ("shall") that made penalty instructions mandatory rather than discretionary.
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Join FLexlaw to unlock all legal intelligenceAt trial, Sapp's counsel argued that Florida Supreme Court precedent made penalty instructions discretionary and requested the trial court use its dis…
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PER CURIAM.
Before the trial court, appellant took the position that the giving of instructions to the jury on the maximum and minimum penalties for the offense charged was discretionary. Counsel argued:
I am aware of the case where the Supreme Court indicated the rule in criminal procedure which indicates that the Court shall read this particular instruction.
The Florida Supreme Court has made it discretionary, saying that shall means may. I would request that the Court follow that Supreme Court ruling, that it is within its discretion to read a particular instruction, and that it read the instruction on the maximum and minimum penalty.
This was undoubtedly a reference to Johnson v. State, 308 So. 2d 38 (Fla.1974) which held that Rule 3.390(a) as it pertained to penalties was directory only and not mandatory.
In 1977 this rule was changed by substituting the word “shall” for the word “must”, with other minor changes. The rule now (and at the time of appellant’s trial) reads:
The presiding judge shall charge the jury only upon the law of the case at the conclusion of argument of counsel and upon request of either the State or the defendant the judge shall include in said charge the maximum and minimum sentences which may be imposed (including probation) for the offense for which the accused is then on trial.
The Florida Bar (Re Florida Rules of Criminal Procedure), 343 So. 2d 1247, 1261 (Fla.1977).
On appeal appellant takes the position that this change of language rendered the rule regarding penalties mandatory rather than directory. This position is obviously well taken. Tascano v. State, 393 So. 2d 540 (Fla.1980).
The difficulty is that Tascano affords relief only to “others who have preserved this point on appeal.” Id. at 541. Here not only did appellant fail to apprise the trial court of his view (newly taken on appeal) that the rule was mandatory after this change; he in fact affirmatively stated that it was merely directory. A clearer example of invited error would be difficult to envision. See, e.g., Clark v. State, 363 So. 2d 331 (Fla.1978).
One may not tender a position to the trial court on one ground and successfully offer a different basis for that position on appeal. Black v. State, 367 So. 2d 656 (Fla. 3d DCA cert. denied 378 So. 2d 342 (Fla.1979).
Finally, as we pointed out in Austin v. State, 406 So. 2d 1128 (Fla. 4th DCA 1981) it is incumbent upon an appellant to bring to this court a record that clearly demonstrates that the trial court was explicitly put on notice of the precise (and ultimately determined by this court to be the correct) grounds upon which objection was made.
For the foregoing reasons, we affirm.
Our opinion of January 20, 1982, is super-ceded by this opinion on rehearing and is therefore withdrawn.
LETTS, C. J., and ANSTEAD and HERSEY, JJ., concur.
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Kozich v. Hartford Ins. Co. OF Midwest, 609 So. 2d 147 (Fla. 4th DCA 1992)…cond amended complaint and that he should be granted leave to add Stuart L. Stein, P.A., as a co-defendant. Appellant did not make this specific argument below and, therefore, cannot successfully offer it for the first time on appeal. Sapp v. State, 411 So. 2d 363 (Fla. 4th DCA 1982). Accordingly, we affirm the trial court’s order denying appellant’s motion to amend his second amended complaint. We reverse the. trial court’s order granting a summary final judgment and remand this cause for further proceedings…
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Johnson v. State, 486 So. 2d 657 (Fla. 4th DCA 1986)…evidence of any preexisting plan to commit any felony of any kind against Ms. Jones. The state contends that appellant’s present line of argument was never presented to the trial court and is therefore not preserved for appeal. E.g., Sapp v. State, 411 So. 2d 363 (Fla. 4th DCA 1982) (One may not tender a position to the trial court on one ground and successfully offer a different basis for that position on appeal). In the instant case we do not see in the record of the trial proceedings any of the contention…
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Studnicka v. State, 679 So. 2d 819 (Fla. 3d DCA 1996)…ay.” § 775.15(5), Fla.Stat. (1981). The error now claimed, the reasonableness of the delay in executing the arrest warrant, was never put before the trial court. As such, that point may not be raised for the first time on appeal. See Sapp v. State, 411 So. 2d 363 (Fla. 4th DCA 1982), (citing Black v. State, 367 So. 2d 656 (Fla 3d DCA)), cert. denied, 378 So. 2d 342 (Fla.1979) (one may not tender a position to the trial court on one ground and successfully offer a different basis for that position on appeal).…
Previewing 3 of 11 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Clark v. State, 363 So. 2d 331 (Fla. 1978)
- Tascano v. State, 393 So. 2d 540 (Fla. 1980)
- Johnson v. State, 308 So. 2d 38 (Fla. 1974)
- The Fla. Bar. re Fla. Rules of Crim. Procedure, 343 So. 2d 1247 (Fla. 1977)
- Black v. State, 367 So. 2d 656 (Fla. 3d DCA 1979)
- Austin v. State, 406 So. 2d 1128 (Fla. 4th DCA 1981)