BILLY M. YORK, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Billy York was convicted by jury of manslaughter after being charged with second-degree murder. He appeals on grounds of insufficient evidence regarding the decedent's identity and challenges to the trial court's jury instructions on self-defense. The court affirms, finding that York failed to properly preserve his objections at trial.
York's challenges are not preserved for appellate review because he failed to properly object at trial. First, he did not raise the sufficiency of evidence issue through a motion for directed verdict or motion for new trial, and he abandoned his motion for a new trial by filing a notice of appeal while it was pending. Second, his objection to the jury charge was impermissibly general and failed to identify which specific instructions he challenged or state the grounds for his objections as required by statute.
“Thus, nowhere did he put the sufficiency of the evidence in issue be fore the trial, court by motion for directed verdict, motion for new trial, or otherwise. This omission is fatal to defendant's position and he cannot now for the first time raise the question of insufficiency of evidence.”
Establishes that failure to raise sufficiency of evidence claims at trial bars appellate review.
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Join FLexlaw to unlock all legal intelligenceYork was charged with murder in the second degree but was found guilty by jury of the lesser included offense of manslaughter and was sentenced accord…
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Defendant was charged with murder in the second degree. Found guilty by jury of manslaughter, he was duly adjudged and sentenced. He appeals. We affirm.
Challenged is the sufficiency of the proof in establishing the identity of the decedent. But, defendant did not object to the bulk of the identification testimony. While he hade a motion for a new trial, he abandoned it when he filed a notice of appeal while his motion was pending. Perez v. City of Tampa, Fla.App.1966, 181 So.2d 571; State ex rel. Faircloth v. District Court of Appeal, Third District, Fla.1966, 187 So.2d 890. Thus, nowhere did he put the sufficiency of the evidence in issue be*768fore the trial, court by motion for directed verdict, motion for new trial, or otherwise. This omission is fatal to defendant’s position and he cannot now for the first time raise the question of insufficiency of evidence. State v. Wright, 224 So.2d 300, Supreme Court of Florida opinion filed June 18, 1969; Kimble v. State, Fla.App.1968, 208 So.2d 471; Jones v. State, Fla.App.1968, 212 So.2d 804; Gilbert v. State, 1941, 148 Fla. 293, 4 So.2d 330.
Next, defendant is aggrieved by a clause found in the court’s charge on self defense.
F.S. Section 918.10(4), F.S.A., provides:
“(4). No party may assign as error or grounds of appeal, the giving or the failure to give an instruction, unless he objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which he objects, and the grounds of his objection. Opportunity shall be given to make the objection out of the hearing of the jury.” (Italics supplied.)
The form of defendant’s objection was as follows:
“MR. CLEVELAND: For the record, Comes now the Defendant, by his Counsel, and objects to every general charge given by the Court and to the failure of the Court to give every requested charge by the Defendant.”
This objection obviously is most general and fails to specifically call attention to the matter to which defendant objected and totally failed to advise of the grounds. When considered in the light of the volume and varied content of the court’s whole charge it is seen that it grossly failed to apprise the trial court of the real objection in order that it might be considered upon its merits and a proper and reasoned ruling made. If such objection were approved as sufficient, it would enable counsel to cloak and conceal a meritorious objection from the trial court which, had it been revealed with specificity, would have allowed the trial court to eliminate the objection and possible error. Used in this fashion the adroit defendant could build error into the record and so have insurance against an unfavorable verdict. Busy trial judges have enough to do in attempting to conduct trials in accordance with law without having to play guessing games with counsel as to the true basis and nature of their objections. We hazard that had counsel given the trial court anything like the same opportunity that he has given this court to learn the nature of his objection, then 'surely the matter would have been remedied and this facet of the appeal eliminated. We reject this assault upon the instruction because of the failure to properly object upon authority of Peel v. State, Fla.App.1963, 154 So.2d 910; Carswell v. State, Fla.1963, 154 So.2d 829.1
Defendant asks us to ignore his failure to preserve the alleged errors and to consider them for the first time here as fundamental error. The defendant’s liberty being at stake, we have reviewed the record and particularly the evidence as to the identity of the decedent and the whole charge given to the jury and conclude that such error does not appear and that the judgment and sentence should be affirmed.
Affirmed.
OWEN, J., and FARRINGTON, OTIS, Associate Judge, concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Castor v. State, 365 So. 2d 701 (Fla. 1978)…st be sufficiently specific both to apprise the trial judge of the putative error and to preserve the issue for intelligent review on appeal. See Rivers v. State, 307 So. 2d 826 (Fla. 1st DCA), cert, denied, 316 So. 2d 285 (Fla.1975); York v. State, 232 So. 2d 767 (Fla. 4th DCA 1969). These considerations compel us to conclude that in re-instruction cases like the present one, objections must be explicit. They must direct the attention of the trial judge to the purported error in a way which will allow him t…
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Courson v. State, 414 So. 2d 207 (Fla. 3d DCA 1982)…ion, a defendant must state distinctly the matter to which he objects and the grounds of his objection. Fla.R.Crim.P. 3.390. See Williams v. State, 399 So. 2d 999 (Fla.3d DCA 1981); Wilson v. State, 383 So. 2d 670 (Fla. 5th DCA 1980); York v. State, 232 So. 2d 767 (Fla. 4th DCA 1969). An objection to the giving of all lesser-included offense instructions is not sufficiently “distinctive” where, as here, at least some of these included offense instructions are proper. Thus, even if, arguendo, it was error to i…
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Hayborn v. State, 264 So. 2d 112 (Fla. 4th DCA 1972)…med. See Cotton v. State, Third District Court of Appeal, 261 So. 2d 179, opinion filed April 25, 1972; see also Killingsworth v. State, 1925, 90 Fla. 299, 105 So. 834; Sanders v. State, Fla.App.1971, 241 So. 2d 430, and York v. State, Fla.App.1969, 232 So. 2d 767. Affirmed. REED, C. J, and OWEN and MAGER, JJ., concur.…
Previewing 3 of 10 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. Wright, 224 So. 2d 300 (Fla. 1969)
- State of Fla. ex rel. Earl Faircloth v. The Dist. Court OF Appeal, 187 So. 2d 890 (Fla. 1966)
- Gilbert v. State, 4 So. 2d 330 (Fla. 1941)
- Peel v. State, 154 So. 2d 910 (Fla. 2d DCA 1963)
- Fratello v. State, 154 So. 2d 327 (Fla. 2d DCA 1963)
- Kimble v. State, 208 So. 2d 471 (Fla. 1st DCA 1968)
- Gabriel Perez et ux. v. City OF Tampa, 181 So. 2d 571 (Fla. 2d DCA 1966)
- Jones v. State, 212 So. 2d 804 (Fla. 1st DCA 1968)
- Carswell v. State, 154 So. 2d 829 (Fla. 1963)