BERNARD WIGGINS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court affirmed convictions for aggravated battery and burglary of an occupied dwelling with assault, holding that the trial court properly denied the motion for judgment of acquittal and that the jury instruction on burglary was not preserved for appeal due to lack of objection at trial.
A jury instruction permitting conviction of burglary based on intent formed upon entry or remaining in a dwelling is not reviewable on appeal when the defendant fails to object at trial.
[1] A defendant's challenge to a jury instruction on burglary is not preserved for appeal when the defendant fails to object to the instruction at trial and the error is not…
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Join FLexlaw to unlock all legal intelligenceAppellant was convicted of aggravated battery and burglary of an occupied dwelling with assault. The trial court instructed the jury that appellant co…
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PER CURIAM.
We affirm appellant’s convictions and sentences for aggravated battery and burglary of an occupied dwelling with assault. Because the state presented evidence of a prima facie case on the burglary of an occupied dwelling charge, the trial court correctly denied appellant’s motion for a judgment of acquittal. Appellant also challenges the trial court’s instruction to the jury that appellant could be convicted of burglary if he formed the requisite intent when he entered or “remained in” the dwelling. Appellant argues that this instruction is contrary to the Florida Supreme Court’s decision in Delgado v. State, 776 So. 2d 233 (Fla.2000), abrogated by statute as noted in Otero v. State, 807 So. 2d 666 (Fla. 4th DCA 2001), which required the “remaining in” to be surreptitious in order to be convicted of burglary. However, this Court has previously held that challenges to an “inaccurate or erroneous instruction must be preserved for appeal.” Reed v. State, 783 So. 2d 1192, 1196-97 (Fla. 1st DCA 2001). Because the alleged error is not fundamental and appellant did not raise an objection to the instruction at trial, he failed to preserve this issue for appeal. But see Valentine v. State, 774 So. 2d 934 (Fla. 5th DCA 2001).
AFFIRMED.
BOOTH, WOLF and LEWIS, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Johnekins v. State, 823 So. 2d 253 (Fla. 3d DCA 2002)…re must be an objection to preserve the issue for appeal.” State v. Delva, 575 So. 2d 643, 645 (Fla.1991) (citations omitted); see also Holiday v. State, 753 So. 2d 1264 (Fla.2000); Stewart v. State, 420 So. 2d 862, 863 (Fla.1982); Wiggins v. State, 821 So. 2d 378 (Fla. 1st DCA 2002). Similarly, giving an instruction on a matter which is not in material dispute is [*257] properly viewed as mere surplusage and certainly not a matter of fundamental error. Daughtry v. State, 804 So. 2d 426 (Fla. 4th DCA 2001), r…
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Miller v. State, 828 So. 2d 445 (Fla. 4th DCA 2002)…iller entered the premises without criminal intent and only formed criminal intent while “remaining in” the structure next to the pro shop. The inclusion of the language is, therefore, surplusage and not fundamental error. See also Wiggins v. State, 821 So. 2d 378 (Fla. 1st DCA 2002)(holding that inclusion of “remaining in” language was not preserved and not fundamental error);, Foster v. State, 27 Fla. L. Weekly D1360, — So. 2d -, 2002 WL 1285453 (Fla. 1st DCA June 12, 2002)(holding that the inclusion of “re…
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Wiggins v. State, 933 So. 2d 1224 (Fla. 1st DCA 2006)…vely refute Appellant’s claim. See Fla. R.Crim. P. 3.850(d). Appellant was convicted of burglary of an occupied dwelling with an assault and aggravated battery. Appellant’s conviction and sentence were affirmed by written opinion. Wiggins v. State, 821 So. 2d 378 (Fla. 1st DCA 2002), rev. denied, 845 So. 2d 894 (Fla.2003). In his postconviction motion, Appellant relies on Delgado v. State, 776 So. 2d 233 (Fla.2000), and alleges that counsel was ineffective for failing to object to the omission of “surreptit…
Authorities Cited
- Delgado v. State, 776 So. 2d 233 (Fla. 2000)
- Reed v. State, 783 So. 2d 1192 (Fla. 1st DCA 2001)
- Valentine v. State, 774 So. 2d 934 (Fla. 5th DCA 2001)
- Otero v. State, 807 So. 2d 666 (Fla. 4th DCA 2001)