REUBEN R. ALFORD, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Reuben Alford was convicted of aggravated assault and robbery after a jury trial. On appeal, he challenged the trial court's failure to instruct the jury on larceny as a lesser included offense of robbery, but the court affirmed his conviction because defense counsel affirmatively waived the request for lesser included offense instructions.
The court held that Alford waived his right to challenge the omission of lesser included offense instructions by having his counsel affirmatively decline such instructions when the trial court inquired. Therefore, the trial court did not err, and Alford cannot raise this as error on appeal.
[1] A defendant waives the right to assert as error on appeal the trial court's failure to give instructions on lesser included offenses when defense counsel affirmatively in…
[2] A party generally cannot claim reversible error based on a trial court's ruling on a matter to which the party accepted the ruling without objection, unless the party had…
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Join FLexlaw to unlock all legal intelligence“Upon an indictment, information or affidavit upon which the defendant is to be tried for any offense the jurors may convict the defendant of an attempt to commit such offense if such attempt is an offense, or may convict him of any offense which is necessarily included in the offense charged. The Court shall charge the jury in this regard.”
Statement of Florida Criminal Procedure Rule 3.510 establishing the mandatory requirement to charge juries on lesser included offenses
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Join FLexlaw to unlock all legal intelligenceAlford was informed against for mayhem, aggravated assault, and robbery. He was tried by jury and convicted of aggravated assault and robbery. At tria…
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Defendant-appellant was informed against for (1) mayhem, (2) aggravated assault, and (3) robbery. He was tried by a jury and convicted of aggravated assault and robbery.
On appeal, one of appellant’s contentions is that the trial court erred in not including larceny as a lesser included offense of robbery in its charge to the jury.
The record on appeal reflects the following with regards to the issue of lesser included offenses:
“THE COURT: Both the State and defense special requested instructions are denied. Most of them are included in the Court’s standard charges.
“All right.
“Now, what about lessors?
“MR. WEED1: No, your Honor.
“MR. WOODWARD 2 : No, your Honor.” [Emphasis supplied]
Although the recent trend is to read CrPR 3.510,3 33 F.S.A. as mandatory (see State v. Washington, Fla.1972, 268 So.2d 901 and Rayner v. State, Fla.1973, *480273 So.2d 759); Nevertheless, we cannot ignore Florida Appellate Rule 6.7 (g) 4 32 F.S.A. which has been construed consistently to preclude an appellant from claiming reversible error because of the trial court’s ruling on questions where the appellant had accepted the trial court’s ruling without objection, unless he had no opportunity to object. See also Raco v. State, Fla.App.1959, 114 So.2d 485. We also noted a long line of cases wherein it has been held that a request for an instruction or an objection to a failure to give an instruction is a requirement to raising error on appeal. See Flagler v. State, Fla.1967, 198 So.2d 313; McPhee v. State, Fla.App.1971, 254 So.2d 406; Johnson v. State, Fla.App.1969, 229 So.2d 13; Jerry v. State, Fla.App.1968, 213 So.2d 440; Burkhead v. State, Fla.App.1968, 206 So.2d 690.
Turning to the case sub judice, in light of the above, defendant cannot now raise as error the trial court’s not instructing the jury as to its option to convict of any attempt or necessarily included offense within the offense of robbery where counsel for the defense replied in the negative to the court’s inquiry whether he desired instructions as to lesser included offenses. Thus, we find the following holding in Henry v. State,5 Fla.App.1973, 277 So.2d 78, (1973) to be applicable to the case at bar. “We have little difficulty construing the defendant’s statement in reply to the trial judge as a waiver of his right to assert as error on appeal a failure to give any instructions. This is true notwithstanding the mandatory language of the rule (CrPR 3.510) and the apparent tendency of the recent cases to require a mechanical application of the rule.”
We have considered appellant’s remaining points on appeal and find them to be without merit.
Accordingly, the judgment herein appealed must be and hereby is affirmed.
Affirmed.
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Cited By (11 total)
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Adams v. State, 412 So. 2d 850 (Fla. 1982)…ation of the murder. Perhaps that explains his failure to make any objection to the instruction. Request for an instruction or an objection to a failure to give an instruction is a prerequisite to raising an alleged error on appeal. Alford v. State, 280 So. 2d 479 (Fla. 3d DCA), cert. denied, 284 So. 2d 218 (1973); Flagler v. State, 198 So. 2d 313 (Fla.1967). Defendant says that the trial court committed reversible error in admitting into evidence, over defendant’s objection, two photographs of the victim. O…
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Jones v. State, 358 So. 2d 37 (Fla. 4th DCA 1978)…on appeal of an error which he himself induced. See Judge Wigginton’s very able opinion in McPhee, supra. Accordingly, the judgment of conviction and sentence appealed from is AFFIRMED. ALDERMAN, C. J., and DAUKSCH, J., concur. . Alford v. State, 280 So. 2d 479 (Fla. 3d DCA 1973).…
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Hood v. State, 287 So. 2d 110 (Fla. 4th DCA 1973)…an instruction is necessary to raise error on appeal; likewise, allegedly improper arguments of a prosecuting officer will be reviewed only when an objection is timely made. Henry v. State, Fla.App.1973, 277 So. 2d 78; Alford v. State, Fla.App.1973, 280 So. 2d 479; Jones v. State, Fla.App.1967, 197 So. 2d 829. By reason of not having proceeded in accordance with the foregoing and finding that the matters complained of for the first time on appeal do not constitute fundamental error, the defendant cannot now r…
Previewing 3 of 11 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- McPHEE v. State, 254 So. 2d 406 (Fla. 1st DCA 1971)
- State v. Washington, 268 So. 2d 901 (Fla. 1972)
- Flagler v. State, 198 So. 2d 313 (Fla. 1967)
- Rayner v. State, 273 So. 2d 759 (Fla. 1973)
- Burkhead v. State, 206 So. 2d 690 (Fla. 3d DCA 1968)
- Henry v. State, 277 So. 2d 78 (Fla. 2d DCA 1973)
- Jerry v. State, 213 So. 2d 440 (Fla. 2d DCA 1968)
- Johnson v. State, 229 So. 2d 13 (Fla. 4th DCA 1969)
- Raco v. State, 114 So. 2d 485 (Fla. 3d DCA 1959)