FRANKIE LEE CLEMENTS, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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The court held that a defendant's waiver of lesser included offenses, even if contrary to mandatory procedural rules, does not constitute reversible error on appeal if the defendant failed to object to the waiver below.
The defendant was convicted of first-degree murder after a jury trial. During the charge conference, the defendant expressly waived the instruction of…
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PER CURIAM.
Appellant, defendant in the trial court, seeks review of a judgment and sentence of life imprisonment for first degree murder. Appellant was found guilty by a jury for the murder of an employee at a U-Totem Store, which occurred during a robbery of the store on November 23, 1971. At the charge conference, prior to instruction of the jury, defendant expressly waived the charging of lesser included offenses to the jury. The state accepted the waiver, and the court accordingly only charged the jury on a first degree murder or not guilty verdict.
Appellant now challenges the court’s failure to charge the jury of necessarily included lesser offenses of first degree murder because of the mandatory language of Fla.CrRP 3.510, 33 F.S.A. We agree with appellant’s contention that the language of the rule is mandatory. Brown v. State, Fla. 1968, 206 So. 2d 377, 382; State v. Washington, Fla.1972, 268 So. 2d 901; Rayner v. State, Fla.1973, 273 So. 2d 759. However we cannot see where the court’s failure to adhere to the rule calls for reversal, when defendant not only failed to object, but actually invited the error when, apparently for trial strategy reasons, he decided to waive the giving of the lesser included offenses charge.
Recently, this court on facts closely analogous to the instant case followed a long line of cases holding that a request for an instruction or an objection to a failure to give an instruction is a requirement to raising error on appeal, and we followed Florida Appellate Rule 6.7(g), 32 F.S.A. Alford v. State, Fla.App.1973, 280 So. 2d 479; see also, Black v. State, Fla.App.1973, 279 So. 2d 909.
Therefore, we have concluded that no reversible error has been demonstrated, and for the reasons stated, the judgment and sentence appealed is affirmed.
Affirmed.
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Dobbert v. State, 328 So. 2d 433 (Fla. 1976)…. 206 So. 2d 377 (Fla.1968). . 268 So. 2d 901 (Fla.1972). . 273 So. 2d 759 (Fla.1973). . 269 So. 2d 692 (Fla.App.1972). . 275 So. 2d 264 (Fla.App.1973), cert, den., 279 So. 2d 308. . 287 So. 2d 138 (FIa.App.1973) ; see also Clements v. State, 284 So. 2d 700 (Fla.App. 1973), cert. den., 294 So. 2d 654. . 291 So. 2d 617 (Fla.App.1974). . 297 So. 2d 617 (Fla.App.1974). . 299 So. 2d 126 (Fla.App.1974). . Section 924.33, Florida Statutes.…
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Clements v. State, 320 So. 2d 44 (Fla. 3d DCA 1975)…der in the first degree and sentenced on June 23, 1973, to life imprisonment in the state penitentiary. At trial he was represented by a special assistant public defender. Clements’ conviction was affirmed on appeal. Clements v. State, Fla.App.1973, 284 So. 2d 700. On his appeal he was represented by counsel. On October 25, 1974, the trial court denied Clements’ motion to vacate judgment and sentence pursuant to Rule 3.850, RCrP, 34 F.S.A. On Clements’ appeal from the trial court’s order denying the motion pu…
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Moore v. State, 299 So. 2d 119 (Fla. 3d DCA 1974)…ce, we find that defense counsel neither requested nor objected to the failure to the giving of such an instruction and, therefore, appellant now is precluded from raising this as error for the first time on appeal. Clements v. State, Fla.App. 1973, 284 So. 2d 700. Appellant also contends that the trial court erred in denying defendant’s motion for change of venue pursuant to RCrP 3.-240, 33 F.S.A. We cannot agree. First, although defense counsel filed a motion for change of venue with accompanying affidavi…
Previewing 3 of 8 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Brown v. State, 206 So. 2d 377 (Fla. 1968)
- State v. Washington, 268 So. 2d 901 (Fla. 1972)
- Rayner v. State, 273 So. 2d 759 (Fla. 1973)
- Reuben R. Alford v. State, 280 So. 2d 479 (Fla. 3d DCA 1973)
- Black v. State, 279 So. 2d 909 (Fla. 3d DCA 1973)
- Del Moody v. State, 279 So. 2d 909 (Fla. 4th DCA 1973)