REINALDO HERNANDEZ, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Reinaldo Hernandez was convicted of burglary and sexual battery and sentenced to 99 years. He appealed various issues, but the Florida Fourth District Court of Appeal affirmed his conviction, finding that his claims either lacked merit or were not properly preserved for appellate review.
The court affirmed the conviction. While the trial court failed to make the requisite statement of findings of fact, this error was not preserved for appellate review by the defendant. Any error regarding the failure to instruct on technical elements of assault was waived because the defendant did not raise it at trial and did not preserve fundamental error.
[1] A failure by the trial court to make the requisite statement of findings of fact under Florida Statute 947.16(3)(a) may be raised via a motion for postconviction relief i…
[2] An appellate court will affirm a conviction despite an unpreserved error if the defendant's remaining points on appeal are without merit.
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Join FLexlaw to unlock all legal intelligence“The trial court failed to make the requisite statement of its findings of fact under Florida Statute 947.16(3)(a) (1981), but defendant did not object or preserve this error in the trial court.”
Establishes that while a procedural error occurred, the defendant waived review by not raising it at trial
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceDefendant was convicted of burglary and sexual battery with intent to commit sexual battery upon a named victim. During the burglary, he committed an …
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PER CURIAM.
Defendant was convicted of burglary and sexual battery and sentenced to a term of 99 years with the trial court retaining jurisdiction for one-third of that sentence. Defendant appeals. We affirm.
The trial court failed to make the requisite statement of its findings of fact under Florida Statute 947.16(3)(a) (1981), but defendant did not object or preserve this error in the trial court. We affirm as to this point but without prejudice to defendant’s right to present same to the trial court via Florida Rule of Criminal Procedure 3.850, if he is so advised. Sawyer v. State, 401 So. 2d 939 (Fla. 1st DCA 1981) and McFadden v. State, 423 So. 2d 456 (Fla. 4th DCA 1982). Defendant’s remaining points on appeal are either without merit or have not been preserved for appellate review.
Affirmed.
HERSEY and WALDEN, JJ., concur. ANSTEAD, J., concurs specially with opinion.
ANSTEAD, Judge, concurring specially:
I concur in all respects with the majority opinion and write separately only as to one issue. The appellant was charged with and convicted of sexual battery and burglary with the intent to commit a sexual battery upon a named victim, and in the course of which he committed an assault upon the same female victim. The information did not list the elements of the assault charged and at trial the trial court did not instruct the jury on the technical elements of assault. However, it is clear from the record that at all times the court, the state and the defendant were acting under the assumption that the sexual battery charged as a separate offense and also referred to in the burglary charge was the “assault” referred to in the burglary charge. Of course, the jury was instructed on the elements of the sexual battery. Now, for the first time, the appellant is complaining on appeal about the trial court’s failure to instruct on the technical elements of assault. I believe any error in this regard has been waived. In Lindsey v. State, 416 So. 2d 471 (Fla. 4th DCA 1982), this court held that the elements of an assault charged as an aggravating circumstance in a burglary should be set out in the charging document. However, we specifically held that the failure to do so was not fundamental error. In other words the omission must be attacked in the trial court. I think the same principle applies here where it is clear that there was abundant proof of the commission of an assault upon the victim as alleged and no fundamental rights of the appellant have been violated. To allow the appellant to receive a new trial on the basis of such technical deficiencies without raising the issue below would be to invite the kind of judicial “sandbagging” condemned by the Supreme Court in Clark v. State, 363 So. 2d 331 (Fla.1978).
Cases With Similar Vibessemantic neighbors from the corpus
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Whitehead v. State, 446 So. 2d 194 (Fla. 4th DCA 1984)…h sufficient particularity. We find that any error which may have occurred was not preserved for appellate review. Not being of fundamental proportions it was thereby waived. McFadden v. State, 423 So. 2d 456 (Fla. 4th DCA 1982); Hernandez v. State, 425 So. 2d 213 (Fla. 4th DCA 1983). The final error of which appellant complains, and to which we add an observation of our own, concerns the appropriateness here of mandatory minimum sentences. Appellant was convicted of “attempted murder in the first degree, w…
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Sye Christopher Jenkins v. State, 448 So. 2d 1060 (Fla. 4th DCA 1984)…ecord shows that the circuit court failed to follow the statute; however, the point is not preserved for appellate purposes because appellant made no objection at the time, Whitehead, v. State, 446 So. 2d 194 (Fla. 4th DCA 1984); Hernandez v. State, 425 So. 2d 213 (Fla. 4th DCA 1983); McFadden v. State, 423 So. 2d 456 (Fla. 4th DCA 1982), and because the error is not of fundamental proportions. Whitehead, supra. Accordingly, we do not disturb the sentence insofar as it maintains circuit court jurisdiction ove…
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Landrau v. State, 442 So. 2d 418 (Fla. 4th DCA 1983)…er a portion of the sentence allegedly without stating grounds therefor with sufficient particularity. The error, however, was not preserved for review nor is it fundamental. McFadden v. State, 423 So. 2d 456 (Fla. 4th DCA 1982); Hernandez v. State, 425 So. 2d 213 (Fla. 4th DCA 1983). Accordingly, we affirm. AFFIRMED. ANSTEAD, C.J., and DELL, J., concur.…
Authorities Cited
- Clark v. State, 363 So. 2d 331 (Fla. 1978)
- Muldrow v. Starr, 401 So. 2d 939 (Fla. 1st DCA 1981)
- Lindsey v. State, 416 So. 2d 471 (Fla. 4th DCA 1982)
- Langdale Co., N.V. v. Fla. Paving Co., Inc., 423 So. 2d 456 (Fla. 3d DCA 1982)
- Duclos v. State, 423 So. 2d 456 (Fla. 4th DCA 1982)