CERVELIO CRESPO, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Defendant's conviction for possession of a firearm by a convicted felon was affirmed because defense counsel failed to object to the trial court's inadvertent omission of a jury instruction defining "care and custody," and the omitted instruction was inapplicable to the charge anyway.
A defendant is not entitled to reversal based on a trial court's inadvertent omission of a jury instruction when defense counsel fails to object and the omitted instruction does not apply to the charge.
[1] A defendant waives objection to an inadvertent omission of a jury instruction by failing to object at trial or request verification of the record.
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Join FLexlaw to unlock all legal intelligenceCrespo was convicted of possession of a firearm by a convicted felon under § 790.23, Fla.Stat. (1983). The trial court indicated it would give a Stand…
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BASKIN, Judge.
Defendant Crespo seeks reversal of his conviction of possession of a firearm by a convicted felon. § 790.23, Fla.Stat. (1983). As grounds for reversal, he cites the trial court’s inadvertent omission of the Standard Jury Instruction defining “care and custody.” The omitted instruction would have defined that portion of the charge dealing with a convicted felon having in his “care, custody, possession or control, a firearm.” The court had indicated it would give such an instruction, but apparently failed to do so. When the state brought the omission to the court’s attention, the court responded, “I certainly gave that, you can rest assure [sic].” Counsel for the state remarked, “I hope so,” and defense counsel said, “No objection.”
On this record, we find no basis for reversal. Defense counsel failed to object to the omission or even ask the court reporter to check the record, see Maxwell v. Wainwright, 490 So. 2d 927 (Fla.), cert. denied, — U.S. —, 107 S.Ct. 474, 93 L.Ed.2d 418 (1986); Austin v. State, 406 So. 2d 1128 (Fla. 4th DCA 1981), dismissed, 419 So. 2d 1200 (Fla.1982); Fla.R.Crim.P. 3.390(d); Standard Jury Instruction notes indicate that the omitted definition applies only to a concealed firearm charge, not to the charge in this case, Fla.StdJur.Instr. (Crim.) Felons Possessing Weapons. Furthermore, the court did not refuse to give the instruction, cf. Fla.R.Crim.P. 3.600(b)(7) (court’s refusal to give proper instruction grounds for new trial under appropriate circumstances), and thus, defendant is not entitled to a new trial on that ground.
Affirmed.
FERGUSON, Judge
(specially concurring).
I agree that failure of the court to give an instruction defining “care and custody” was not erroneous.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Acosta v. State, 599 So. 2d 284 (Fla. 3d DCA 1992)…preserve for review the trial court’s failure to declare a mistrial, see Riechmann v. State, 581 So. 2d 133 (Fla.1991), or its failure to give the agreed upon cautionary instruction. Castor v. State, 365 So. 2d 701, 703 (Fla.1978); Crespo v. State, 505 So. 2d 685 (Fla. 3d DCA 1987). Furthermore, the record does not disclose that the prosecutor’s question constituted fundamental error. See Woodard v. State, 579 So. 2d 875 (Fla. 1st DCA 1991). Affirmed.…
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Pachon v. State, 613 So. 2d 610 (Fla. 3d DCA 1993)…PER CURIAM. Affirmed. See Crespo v. State, 505 So. 2d 685 (Fla. 3d DCA 1987); Fla. R.Crim.P. 3.390(d).…
Authorities Cited
- Maxwell v. Louie L. Wainwright, 490 So. 2d 927 (Fla. 1986)
- Austin v. State, 406 So. 2d 1128 (Fla. 4th DCA 1981)