ROBERT OWENS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that the appellant's claim of an erroneous jury instruction cannot be raised on appeal because no objection was made at trial.
Appellant was charged with manslaughter but convicted of aggravated assault. Eyewitnesses testified to the act. Appellant sought reversal based on an …
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Appellant seeks reversal of the judgment of conviction of aggravated assault entered against him after trial by jury. The information charged appellant with manslaughter in that he was alleged to have killed his landlord by striking him in the head with an ax.
There were eyewitnesses who testified that appellant committed the act charged. The jury returned its verdict on the lesser offense of aggravated assault.
For reversal, appellant contends that the trial judge erroneously instructed the jury on the elements of the crime of aggravated assault, whereas he was charged with the crime of manslaughter. No objection was made to the questioned instruction at the time it was given.
Appellant’s claim for reversal is not well founded. Section 918.10(4), Florida Statutes, F.S.A., clearly states that the giving or failure to give an instruction by the trial judge may not be urged as error for reversal unless objection thereto was made before the jury retires to consider its verdict. See also Jones v. State, 197 So.2d 829 (Fla.App.3d 1967) and cases cited therein.
Affirmed.
WIGGINTON, C. J., and CARROLL, DONALD K., and SPECTOR, JJ., concur.
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Citator
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Norris v. State, 249 So. 2d 746 (Fla. 4th DCA 1971)…6; State v. Kahler, Fla.1970, 232 So. 2d 166; Warren v. State, Fla.App.1969, 227 So. 2d 213; F.S. section 918.10(4), F. S.A.; Grace v. State, Fla.App.1968, 206 So. 2d 225; Dryden v. State, Fla.App.1968, 214 So. 2d 662; Owens v. State, Fla.App. 1968, 215 So. 2d 627; Dalton v. State, Fla. 949, 42 So. 2d 174; Guarino v. State, Fla.1953, 67 So. 2d 650; Forceier v. State, Fla.App.1961, 133 So. 2d 336; Williams v. State, Fla.App.1959, 109 So. 2d 379; Clinton v. State, Fla.App.1958, 100 So. 2d 82; Pearsall v. State,…
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Hyatt v. State, 294 So. 2d 419 (Fla. 3d DCA 1974)…pp.1963, 152 So. 2d 793; McDougal v. State, Fla.App.1966, 181 So. 2d 539; Scarborough v. State, Fla.App.1966, 188 So. 2d 877; Jones v. State, Fla.App.1967, 197 So. 2d 829; Tennant v. State, Fla.App.1967, 205 So. 2d 324; Owens v. State, Fla.App.1968, 215 So. 2d 627; Bertone v. State, Fla.App.1969, 224 So. 2d 400; Richardson v. State, Fla.1971, 246 So. 2d 771; Cole v. State, Fla.App.1972, 262 So. 2d 902; State v. Redden, Fla.App.1972, 269 So. 2d 415; CrPR 3.720(b), 33 F.S.A.…
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Francois v. Louie L. Wainwright, 741 F.2d 1275 (11th Cir. 1984)…75). The Florida courts have applied this rule consistently. See, e.g., White v. State, 324 So. 2d 115, 115-16 (Fla. Dist.Ct.App.1975), cert, denied, 339 So. 2d 1173 (Fla.1976); Rayner v. State, 286 So. 2d 604 (Fla.Dist.Ct.App.1973); Owens v. State, 215 So. 2d 627 (Fla.Dist.Ct.App.1968).11 Given this state procedural bar, appellate counsel could reasonably have concluded that on appeal the Florida Supreme Court would not review the jury instruction issue on the merits. We note that there may be some cases i…
Authorities Cited
- Urban Theron Jones v. State, 197 So. 2d 829 (Fla. 3d DCA 1967)