STEPHEN F. MONTES, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE

Fla. 5th DCA | 2008-11-14
No. 5D07-4294
PLEUS and TORPY, JJ., concur.
994 So. 2d 1210 Florida District Court of Appeal, Fifth District (2008) Positive Treatment
Cited by 2 cases

AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.

Synopsis

Stephen Montes appealed his conviction for aggravated battery with a deadly weapon, arguing that the evidence was insufficient to sustain the conviction. The Florida District Court of Appeal affirmed the conviction, holding that Montes failed to preserve his sufficiency-of-the-evidence argument for appellate review by not raising it in the specific form at trial.


Holding

The court affirmed the conviction, holding that Montes failed to preserve his sufficiency-of-the-evidence claim for appellate review because he did not raise it in the specific form at trial. Although Montes moved for judgment of acquittal based on different arguments (that his actions were not intentional and that a beer bottle could not be classified as a deadly weapon), he raised a new and different sufficiency argument on appeal, which was not preserved.


Headnotes

[1] A claim of error is not preserved for appellate review unless it is the specific contention asserted as legal grounds for the objection, exception, or motion made in the…

[2] A contemporaneous objection is generally required to preserve an issue for appellate review, with the exception of fundamental error.

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Key Quotes

“Generally, to raise a claimed error on appeal, a litigant must object at trial when the alleged error occurs.”

Establishes the contemporaneous objection rule requiring preservation of issues for appellate review

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Facts & Procedural History

Police responded to a 911 call from Misty Kennedy, Montes's girlfriend. Kennedy initially told police that Montes angrily threw a beer bottle at her, …

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Opinion of the Court
ORFINGER, J.

ORFINGER, J.

Stephen F. Montes appeals his conviction of aggravated battery with a deadly weapon. Montes contends that the evidence presented at trial was insufficient to sustain his conviction. Because the issue was not preserved for appellate review, we affirm.

The police were dispatched to the home of Misty Kennedy, Montes’s girlfriend, as a result of a 911 call she placed. Kennedy told the 911 operator and the responding officer that she and Montes had quarreled, and, in a fit of anger, he hurled a beer bottle at her, which struck and lacerated her chin.

At trial, Kennedy recanted, testifying that she was injured when she sat up quickly, bumping her chin on the beer bottle that Montes was holding. She testified that she had lied in her earlier statements “because she was mad” at Montes. At the conclusion of the State’s case, Montes moved for a judgment of acquittal. He argued that the State failed to prove that his actions were intentional or that a beer bottle could be classified as a deadly weapon.

The trial court denied the motion and Montes was convicted.

On appeal, Montes does not raise either of the arguments made below, but instead contends that Kennedy’s prior inconsistent statements, recanted at trial, were insufficient to sustain his conviction. Generally, to raise a claimed error on appeal, a litigant must object at trial when the alleged error occurs. F.B. v. State, 852 So. 2d 226, 229 (Fla.2003); J.B. v. State, 705 So. 2d 1376, 1378 (Fla.1998). “Furthermore in order for an argument to be cognizable on appeal, it must be the specific contention asserted as legal grounds for the objection, exception or motion below.” Steinhorst v. State, 412 So. 2d 332, 338 (Fla.1982).

The only exception to the contemporaneous objection rule required to adequately preserve a matter for appellate review applies when the error is deemed fundamental. J.B., 705 So. 2d at 1378. Rarely is an error deemed fundamental, and the general rule requiring a contemporaneous objection to preserve an issue for appellate review applies to challenges to the sufficiency of the evidence.1 F.B., 852 So. 2d at 229, 230.

We conclude that the claimed error was not preserved by specific challenge in the trial court and that no fundamental error occurred. Consequently, we affirm the conviction. In doing so, we express no opinion on the merit of Montes’s claim.

AFFIRMED.

PLEUS and TORPY, JJ., concur. . Two exceptions exist to the rule that a defendant must preserve a claim of insufficiency of evidence through a timely challenge in the trial court. The first exception applies only in death penalty cases because the supreme court is always required to review the sufficiency of the evidence to support the conviction. "The second exception to the requirement that claims of insufficiency of the evidence must be preserved occurs when the evidence is insufficient to show that a crime was committed at all.” F.B., 852 So. 2d at 230. Neither exception applies here.

Additionally, a motion or objection must be specific to preserve a claim of insufficiency of the evidence for appellate review. A boilerplate objection or motion is inadequate. F.B., 852 So. 2d at 230 n. 2; Brooks v. State, 762 So. 2d 879, 894-95 (Fla.2000).


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Citator

Cited By

  • Sausville v. State, 22 So. 3d 858 (Fla. 5th DCA 2009)
    …r preserved below. See Steinhorst v. State, 412 So. 2d 332, 338 (Fla.1982) (“[F]or an argument to be cognizable on appeal, it must be the specific contention asserted as legal ground for the objection, exception, or motion below.”); Montes v. State, 994 So. 2d 1210, 1212 (Fla. 5th DCA 2008). As a result, Ms. Saus-ville’s sentence is affirmed. Notwithstanding, Ms. Sausville is free to raise her trial counsel’s failure to seek a recusal of the sentencing judge and present mitigating evidence at sentencing by way…

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