GERALD THOMAS WEBB, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court affirmed a capital sexual battery conviction, holding that the trial judge properly refused jury instructions on lesser included offenses barred by the statute of limitations where the defendant failed to waive that defense.
A defendant who does not waive the statute of limitations defense cannot require jury instructions on lesser included offenses barred by that statute, and the trial judge has no duty to inform the defendant of the option to waive.
[1] A defendant's mere request for jury instructions on lesser included offenses that are time-barred by the statute of limitations does not constitute an effective waiver of…
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Join FLexlaw to unlock all legal intelligenceGerald Thomas Webb was convicted of capital sexual battery. The trial judge refused to give jury instructions on certain lesser included offenses beca…
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DAUKSCH, J.
This is an appeal from a capital sexual battery conviction.
Appellant asserts as error the trial court’s refusal to give jury instructions regarding specific lesser included offenses. The judge refused to give those instructions because appellant could not be convicted of them because the statute of limitations had run on those crimes. Appellant did not waive his right under the statute of limitations and now says it was up to the judge to tell him he could have the instructions read to the jury if he would give up his right. A defendant has the burden of proving a proper waiver of the statute of limitations. See Rembert v. State, 476 So. 2d 721 (Fla. 1st DCA 1985). During the trial and previously appellant objected to any reference to acts which took place after the expiration of the statute of limitations and never gave any indication that he wanted to do anything but to have his right under the statute. See Eaddy v. State, 638 So. 2d 22 (Fla.1994) (a defendant’s mere request for jury instructions on time-barred lesser included offenses is not an effective waiver of the statute of limitations defense); Tucker v. State, 459 So. 2d 306 (Fla.1984) (same). Perhaps appellant may seek relief under Florida Rule of Criminal Procedure 3.850 but no error occurred which can be attributed to the trial judge. We find no reversible error regarding the other points on appeal.
AFFIRMED.
W. SHARP and GOSHORN, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Melvee Tucker v. State, 459 So. 2d 306 (Fla. 1984)
- Rembert v. State, 476 So. 2d 721 (Fla. 1st DCA 1985)
- Habie v. Shienvold, 638 So. 2d 22 (Fla. 1994)
- Eaddy v. State, 638 So. 2d 22 (Fla. 1994)