FAUSTINO AGUILERA, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
FAUSTINO AGUILERA, APPELLANT,
THE STATE OF FLORIDA, APPELLEE
526 So. 2d 217
Florida District Court of Appeal, Third District (1988)
Positive Treatment
Cited by 4 cases
Opinion of the Court
PER CURIAM.
Defense counsel’s specific agreement with the trial court’s determination not to instruct on an arguably necessarily lesser included offense in this non-capital case precludes raising the issue on appeal. Jones v. State, 484 So. 2d 577 (Fla.1986); Weyrick v. State, 485 So. 2d 901 (Fla. 4th DCA 1986); compare Harris v. State, 438 So. 2d 787 (Fla.1983), cert. denied, 466 U.S. 963, 104 S.Ct. 2181, 80 L.Ed.2d 563 (opposite rule in capital case). On that basis, the appellant’s only contention may not be considered.
Affirmed.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Campbell v. State, 558 So. 2d 34 (Fla. 1st DCA 1989)…al cases. In other words, where non-capital eases are involved, failure to instruct even as to necessarily lesser included offenses will not be deemed fundamental error. Jones v. State, 484 So. 2d 577, 578-579 (Fla.1986). See also Aguilera v. State, 526 So. 2d 217 (Fla. 3d DCA 1988) (defense counsel’s specific agreement with the trial court’s determination not to instruct on necessarily lesser included offenses in the non-capital case precluded raising the issue on appeal). Moreover, the failure to request a…
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Wade v. State, 610 So. 2d 664 (Fla. 1st DCA 1992)…ecessarily lesser included offense of first-degree murder. See Taylor v. State, 444 So. 2d 931 (Fla.1983); Arline v. State, 550 So. 2d 1180 (Fla. 1st DCA 1989). However, the issue is not preserved and the error is not fundamental. Aguilera v. State, 526 So. 2d 217 (Fla. 3d DCA 1988) (defense counsel’s specific agreement with the trial court’s determination not to instruct on necessarily lesser included offenses in a non-capital case precluded raising the issue on appeal); Jones v. State, 484 So. 2d 577 (Fla.1…
Authorities Cited
- Harris v. State, 438 So. 2d 787 (Fla. 1983)
- Jones v. State, 484 So. 2d 577 (Fla. 1986)
- Global Terminal & Container Servs., Inc. v. Colgate Palmolive Co., 466 U.S. 963 (U.S. 1984)
- Velde v. Nat'l Black Police Assn., Inc., 466 U.S. 963 (U.S. 1984)
- Weyrick v. State, 485 So. 2d 901 (Fla. 4th DCA 1986)