GEORGE K. HERISE, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Affirmed; defendant's affirmative agreement to a jury instruction precludes appellate challenge, distinguishing this case from Mateo where no timely objection was made.
A defendant who affirmatively agrees to or acquiesces in a jury instruction cannot challenge it on appeal, even if the instruction may be deficient.
[1] A defendant who affirmatively agrees to or acquiesces in a jury instruction at trial waives any objection to the instruction and cannot challenge it on appeal.
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Join FLexlaw to unlock all legal intelligence“I guess it is within the court's discretion”
Defense attorney's statement regarding the aggravated assault instruction, indicating affirmative agreement rather than objection.
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Join FLexlaw to unlock all legal intelligenceHerise was convicted of a crime involving an aggravated assault instruction. The defense attorney affirmatively agreed to the instruction at trial, st…
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PER CURIAM.
Affirmed.
ON “MOTION FOR CLARIFICATION AND/OR CERTIFICATION OF ISSUE TO THE SUPREME COURT OF FLORIDA” — DENIED
PER CURIAM.
The appellant has filed a “Motion for Clarification and/or Certification of Issue to the Supreme Court of Florida” seeking to have this Court clarify the Opinion previously entered in this cause and/or to certify that the said Opinion conflicts with Mateo v. State, 757 So. 2d 1229 (Fla. 2d DCA 2000).
We decline to do so, finding that the facts of the instant case are markedly different than those found in Mateo. In Ma-teo, the State argued that Mateo had waived any deficiency in the charging document by virtue of having failed to voice a timely objection to the aggravated battery jury instruction. The facts of the instant case do not involve a defense attorney who failed to object to the aggravated assault instruction. Rather, the instant case involves a defense attorney who affirmatively agreed to and/or acquiesced in the giving of the instruction now being challenged on appeal. On page 220 of the transcript in this case, the defense attorney, after explaining that he was not asking for the aggravated assault instruction, stated, “I guess it is within the court’s discretion”. Furthermore, on page 224 of the trial transcript in this case, the court specifically asked the defense attorney, “Any objection to the standard jury instruction?” The defense attorney answered, “No, not really”.
Accordingly, the “Motion for Clarification and/or Certification of Issue to the Supreme Court of Florida” is denied and the judgment and sentence entered in this case are, in all respects, affirmed.
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Nesbitt v. State, 889 So. 2d 801 (Fla. 2004)…d Ray in holding that when a trial court erroneously instructs the jury on a permissible lesser included offense, the error is not fundamental and a contemporaneous objection is necessary to preserve the error for review. See, e.g., Herise v. State, 763 So. 2d 393 (Fla. 3d DCA 2000); Tolbert v. State, 679 So. 2d 816 (Fla. 4th DCA 1996). Moreover, Florida Rule of Criminal Procedure 3.390(d) makes it clear that a party must object to the giving or the failure to give a jury instruction in order to preserve tha…
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Nesbitt v. State, 819 So. 2d 993 (Fla. 5th DCA 2002)…review. See Ray v. State, 403 So. 2d 956 (Fla.1981)(it is not fundamental error to convict under erroneous lesser included charge where defendant, despite opportunity, failed to object and offense is less serious than main offense); Herise v. State, 763 So. 2d 393 (Fla. 3d DCA 2000); Tolbert v. State, 679 So. 2d 816 (Fla. 4th DCA 1996)(en banc). We recognize that a line of cases represented by Levesque v. State, 778 So. 2d 1049 (Fla. 4th DCA 2001); and Mateo v. State, 757 So. 2d 1229 (Fla. 2d DCA 2000) hold t…
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Chambers v. State, 880 So. 2d 696 (Fla. 2d DCA 2004)…onflict with Ray and this opinion. By this opinion, we intend to align this district with the other district courts of appeal. See Nesbitt v. State, 819 So. 2d 993, 994 (Fla. 5th DCA 2002), review granted, 837 So. 2d 411 (Fla.2003); Herise v. State, 763 So. 2d 393 (Fla. 3d DCA 2000); Tolbert v. State, 679 So. 2d 816 (Fla. 4th DCA 1996) (en banc). Ironically, we must also recognize conflict with Levesque v. State, 778 So. 2d 1049 (Fla. 4th DCA 2001), because that decision relied upon our decision in Mateo. Af…
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- Kem Mateo v. State, 757 So. 2d 1229 (Fla. 2d DCA 2000)