TOMMY BENTON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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PER CURIAM.
Appellant, an inmate at Glades Correctional Institution, was charged with and found guilty of battery on a law enforcement officer in connection with an incident at the correction institution. In his appeal, appellant asserts that, among other things, the trial court committed reversible error in failing to instruct the jury on simple battery, a necessary lesser included offense of battery on a law enforcement officer. We conclude that, although the simple battery instruction must also be given even where the evidence is undisputed that the alleged victim is a law enforcement officer, State v. Wimberly, 498 So. 2d 929 (Fla.1986), and Williams v. State, 611 So. 2d 94 (Fla. 1st DCA 1992), the appellant’s failure below to object to the jury instructions or to request an instruction on simple battery precludes appellant from raising this issue on appeal. Daniels v. State, 587 So. 2d 460 (Fla.1991), Roman v. State, 475 So. 2d 1228 (Fla.1985), cert. denied, 475 U.S. 1090, 106 S.Ct. 1480, 89 L.Ed.2d 734 (1986); Rule 3.390(d), Fla.R.Crim.P. Accordingly, we affirm.
AFFIRMED.
BOOTH, MICKLE and VAN NORTWICK, JJ., concur.
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Citator
Cited By
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Solomon Willis v. State, 840 So. 2d 1135 (Fla. 4th DCA 2003)…. 2d 1063 (Fla.1978). But, to preserve a jury instruction issue for appellate review, the defendant must object to the instructions given or request other instructions. See Leveritt v. State, 817 So. 2d 891, 896 (Fla. 1st DCA 2002); Benton v. State, 650 So. 2d 688 (Fla. 1st DCA 1995). Requesting the instruction on a necessarily lesser-included offense is sufficient to preserve the issue for appeal. See Rodriguez v. State, 789 So. 2d 513 (Fla. 5th DCA 2001). Although Willis claimed the error in this case is fu…
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Nesbitt v. State, 889 So. 2d 801 (Fla. 2004)…ict, stating distinctly the matter to which the party objects and the grounds of the objection. Opportunity shall be given to make the objection out of the presence of the jury. See, e.g., State v. Smith, 240 So. 2d 807 (Fla.1970); Benton v. State, 650 So. 2d 688 (Fla. 1st DCA 1995). In this case, the trial court proposed the jury instructions and both the prosecutor and defense counsel agreed to them. Defense counsel had the opportunity to object and did not do so. Therefore, in accord with the test set fo…
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Williams v. State, 656 So. 2d 572 (Fla. 1st DCA 1995)…in failing to request an instruction on simple battery as a necessarily included offense of battery on a law enforcement officer. Simple battery is a necessarily included offense to a charge of battery on a law enforcement officer. Benton v. State, 650 So. 2d 688 (Fla. 1st DCA 1995); Ferrell v. State, 544 So. 2d 336 (Fla. 1st DCA 1989); State v. Wimberly, 498 So. 2d 929 (Fla. 1986). A claim predicated on ineffective assistance of counsel for failure to request a jury instruction on a necessarily included off…
Authorities Cited
- State v. Wimberly, 498 So. 2d 929 (Fla. 1986)
- Roman v. State, 475 So. 2d 1228 (Fla. 1985)
- Daniels v. State, 587 So. 2d 460 (Fla. 1991)
- Blanks v. Georgia, 475 U.S. 1090 (U.S. 1986)
- Southland News Co., Inc. v. Cnty. of Winnebago, 475 U.S. 1090 (U.S. 1986)
- Williams v. State, 611 So. 2d 94 (Fla. 1st DCA 1992)