KENT G. WILSON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Wilson was convicted of armed robbery (robbery with a weapon) and appealed, challenging jury instructions and claiming ineffective assistance of counsel. The Fourth District Court of Appeal affirmed his conviction and sentence, finding no error in the trial court's refusal to instruct on the lesser-included offense of battery and no merit to the ineffective assistance claim.
The court affirmed the conviction on both grounds: (1) even if jury instruction error occurred, it was not preserved for appeal because Wilson failed to object before the jury retired, and such error is not fundamental; and (2) Wilson was not entitled to relief under Strickland because battery is not a lesser-included offense of armed robbery when the charging information does not allege touching or striking causing bodily harm, and the evidence clearly connected Wilson to the weapon.
[1] A party waives the right to claim error on appeal regarding a jury instruction if no timely objection is made in the trial court.
[2] An objection to a jury instruction made after the jury has retired to deliberate is untimely and cannot be considered on appeal.
Previewing 2 of 3 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“An alleged error may be reviewed on appeal only if it is properly preserved or amounts to fundamental error.”
Establishes the preservation requirement for jury instruction errors on appeal.
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Join FLexlaw to unlock all legal intelligenceWilson was charged with robbing a victim by force, violence, or assault while carrying a weapon (a fork). The victim identified Wilson as the robber a…
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STONE, J.
We affirm Wilson’s conviction and sentence. We also affirm an order denying his pro se motion for post-conviction relief.
Wilson was charged with robbery with a weapon. The information stated that he took money from the victim by “force, violence, assault, or putting in fear,” and that “in the course of committing the robbery ... WILSON carried a weapon, contrary to Florida Statute 812.12(1) and (2)(b).”
Wilson first contends that the trial court erred in refusing to instruct the jury as to the lesser-included offense of battery. At the charge conference, Wilson requested that misdemeanor battery be included as a lesser-included offense. However, he faded to object to the court’s instructions as given.
An alleged error may be reviewed on appeal only if it is properly preserved or amounts to fundamental error. See § 924.051(3), Fla. Stat. (2000). It is well-settled that to preserve a jury instruction error, one must object before the jury retires to consider its verdict. Many v. State, 756 So. 2d 169 (Fla. 4th DCA 2000)(refusing to review alleged jury instruction error where defendant raised question during preliminary, informal discussion but failed to object during formal charge conference or before jury retired to deliberate); Rayner v. State, 286 So. 2d 604 (Fla. 2d DCA 1973)(refusing to review alleged jury instruction error where defendant raised issue during charge conference but failed to object before jury retired to deliberate). Failure to instruct' on the lesser-included offense of a non-capital offense does not amount to fundamental error. Manka v. State, 720 So. 2d 1109 (Fla. 4th DCA 1998).
Had the objection been preserved, we would find no error, as battery is not a lesser-included offense of armed robbery when the information does not contain the elements of that offense. See Cave v. State, 613 So. 2d 454 (Fla.1993); Lawrence v. State, 685 So. 2d 1356 (Fla. 2d DCA 1996). In the instant case, the information charging Wilson alleged that he took money from the victim by force, violence, assault, or putting in fear and carried a weapon at the time. It does not allege that Wilson touched or struck the victim or caused her bodily harm.
Further, any error would be harmless. State v. Abreau, 363 So. 2d 1063 (Fla.1978); Pryor v. State, 755 So. 2d 155 (Fla. 4th DCA 2000).
As to the other issues raised on the merits, we find no error or abuse of discretion. See Tibbs v. State, 397 So. 2d 1120 (Fla.1981), aff'd, 457 U.S. 31, 102 S.Ct. 2211, 72 L.Ed.2d 652 (1982); Grant v. State, 770 So. 2d 655 (Fla.2000).
By post-trial motion, Wilson also alleged that his attorney erroneously failed to seek suppression of a fork that did not have his fingerprints on it. Although Wilson correctly argues that the trial court failed to attach portions of the record supporting its denial of relief, we have the full record before us. The record reflects that the victim identified Wilson as the man who robbed her at the store. She stated that he grabbed her and stuck a silver object in her back. When questioned after his arrest, Wilson told the officers that he had used a fork, not a knife, to intimidate the victim into giving him money. He also told the officers that he stuck the fork in the victim’s back and got the money but could not specifically recall what he did with the fork. The fork in question was found in the store two days later. The record clearly demonstrates that Wilson would not be entitled to the requested relief. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
WARNER, C.J., and HAZOURI, J., concur.
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Solomon Willis v. State, 840 So. 2d 1135 (Fla. 4th DCA 2003)…ntal, the failure to instruct on even a category one lesser-included offense in a non-capital case is not fundamental error. See Richards v. State, 809 So. 2d 38 (Fla. 5th DCA 2002)(citing Jones v. State, 484 So. 2d 577 (Fla.1986)); Wilson v. State, 786 So. 2d 632, 633 (Fla. 4th DCA 2001); Generazio v. State, 727 So. 2d 333 (Fla. 4th DCA 1999); Johnson v. State, 695 So. 2d 787, 788 (Fla. 1st DCA 1997). As a result, this issue could not have been raised on direct appeal. The failure to request an instruction…
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N.H.M. v. State, 974 So. 2d 484 (Fla. 2d DCA 2008)…2d DCA 2006); S.D. v. State, 882 So. 2d 447, 448 (Fla. 4th DCA 2004). Strictly speaking, the simple use of the word “force” does not encompass an intentional touching without consent or the intentional infliction of bodily harm. In Wilson v. State, 786 So. 2d 632 (Fla. 4th DCA 2001), the Fourth District concluded that language similar to the language in N.H.M.’s petition did not properly allege a battery: “In the instant case, the information charging Wilson alleged that he took money from the victim by forc…
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Burns v. State, 170 So. 3d 90 (Fla. 1st DCA 2015)…24 (Fla. 1st DCA 2007) (holding the trial court’s failure to instruct on a lesser-included offense was not preserved for review when the defendant did not request such an instruction and did not object to the instructions as given); Wilson v. State, 786 So. 2d 632, 633 (Fla. 4th DCA 2001) (holding that when defendant charged with robbery with a weapon requested that instruction on misdemeanor batteiy be included as a lesser-included offense but failed to object to the instructions as given, the error was not…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited (13 total)
- Strickland v. Washington, 466 U.S. 668 (U.S. 1984)
- Tibbs v. Florida, 457 U.S. 31 (U.S. 1982)
- Delbert Lee Tibbs v. State, 397 So. 2d 1120 (Fla. 1981)
- Grant v. State, 770 So. 2d 655 (Fla. 2000)
- Grant v. State, 363 So. 2d 1063 (Fla. 1978)
- Brooks v. State, 720 So. 2d 1109 (Fla. 4th DCA 1998)
- Foster v. State, 613 So. 2d 454 (Fla. 1993)
- Cave v. State, 613 So. 2d 454 (Fla. 1993)
- Pryor v. State, 755 So. 2d 155 (Fla. 4th DCA 2000)
- Lawrence v. State, 685 So. 2d 1356 (Fla. 2d DCA 1996)