FRANCIS JAMES WHILDEN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Whilden was convicted of an offense that does not exist in law—"breaking and entering or entering without breaking with intent to commit a misdemeanor." The appellate court affirmed the conviction's validity while remanding to enter judgment on the lesser included offense the jury clearly intended to convict, resolving an ambiguous verdict form that should have been objected to at trial.
Although the verdict form is defective and refers to a non-existent offense, the conviction is valid because the defendant failed to object to the verdict form before jury discharge. The appellate court will examine the record to ascertain the jury's intent and remand for entry of judgment on the lesser included offense the jury clearly intended to convict.
[1] A defendant waives objection to the form of a jury verdict by failing to object to it in the trial court prior to the discharge of the jury.
[2] When a jury verdict is ambiguous, the information and the record may be resorted to in order to ascertain the intent of the jury.
Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“We know of no such alternative offense as that for which appellant was convicted.”
Establishes that the verdict references a legally non-existent crime, yet the court addresses how to handle it on appeal.
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Join FLexlaw to unlock all legal intelligencePolice found Whilden hiding behind a tire rack inside a BP Service Station after hours. The station's cash register was open, Whilden's pockets were f…
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SPECTOR, Acting Chief Judge.
Appellant was caught by the police while hiding behind a tire rack inside a BP Serv ice Station after hours. The station’s cash register was open; appellant’s pockets were filled with change; and the station owner’s gun was beside him. Appellant was consequently arrested and charged with breaking and entering with intent to commit a felony.
Appellant went to trial and the jury returned a verdict as follows:
“We, the jury, find the defendant guilty of breaking and entering or entering without breaking with intent to commit a misdemeanor.”
Judgment was then entered for the same “offense”.
Appellant contends, among other things, that the verdict does not comport with law or reason and we are to some extent compelled to agree. We know of no such alternative offense as that for which appellant was convicted.
However, there is a long line of cases which stand for the proposition that the form of the verdict must be objected to in the trial court prior to the discharge of the jury. Taylor v. State, 88 Fla. 555, 102 So. 884 (1925); General Motors Acceptance Corp. et al. v. Judge of Circuit Court, 102 Fla. 924, 136 So. 621 (1931); Isenberg v. Ortona Park Recreational Center, Inc., 160 So. 2d 132 (Fla.App.1964); Kent v. Polk Grocery Co., 131 Fla. 139, 179 So. 136 (1938); Davis v. Ivey, 93 Fla. 387, 112 So. 264 (1927).
In General Motors Acceptance Corp., supra, the court stated:
“ . . . [where] the intent of the jury in rendering the verdict may fairly and with certainty be gleaned from the words used, and that, as no objection appears to have been made to the form of verdict when the same was presented to the court, the form thereof was waived.”
The record in the instant case shows affirmatively that counsel for appellant stated when asked by the trial judge that he had no objection to the verdict form.
The court has also held in Roberson v. State, 45 Fla. 94, 34 So. 294 (1903), that the information and the record may be resorted to in order to ascertain the intent of the jury as manifested by their verdict. See also O’Neal v. State, 54 Fla. 96, 44 So. 940 (1907). It is, of course, fundamental in our system that a jury may render a verdict on any lesser included offense of the offense charged, Coppolino v. State, 223 So. 2d 68 (Fla.App.1968).
Applying these principles to the case at bar, we believe that upon failure of appellant to object to the form of the verdict below, it is incumbent upon us to ascertain the intent of the jury verdict by resort to the record. It is obvious from the facts presented and from the verdict itself that the jury found the appellant guilty of a lesser included offense, as was its prerogative.
In order to give effect to the jury’s findings, we remand with instructions to enter judgment and sentence on the lesser of the included offenses referred to in the verdict. Since said judgment and sentence to be entered on remand is corrective in nature and will be lesser than that already pronounced earlier, the presence of the defendant before the trial court will not be required at the time of such corrective action.
Appellant has raised other points on appeal which we find to be substantially without merit.
BOYER and McCORD, JJ., concur.
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Sanchez v. State, 490 So. 2d 198 (Fla. 3d DCA 1986)…on count two are inherently ambiguous and that, therefore, a retrial is mandated. We disagree. First, Florida Rule of Criminal Procedure 3.570 requires that objections to verdicts be raised before the jury is discharged. See also Whilden v. State, 301 So. 2d 35, 36 (Fla. 1st DCA 1974). A timely objection and request for cure would have allowed the trial court to cause the jury to further deliberate in order to correct the mistaken verdict. See Griffin v. State, 414 So. 2d 1025, 1028-29 (Fla.1982) (court ma…
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Denmark v. State, 656 So. 2d 166 (Fla. 1st DCA 1995)…e observe that courts have repeatedly adhered to the requirement of Florida Rule of Criminal Procedure 8.570,3 providing that an objection to any irregularity in a verdict must be raised while the jury is still in court. See, e.g., Whilden v. State, 301 So. 2d 35 (Fla. 1st DCA 1974); Pineiro v. State, 615 So. 2d 801 (Fla. 3d DCA 1993); Wolfram v. State, 568 So. 2d 992 (Fla. 5th DCA 1990). Denmark thus waived any challenge to the verdict. AFFIRMED. ZEHMER, C.J., and VAN NORTWICK, J., concur. . That statute…
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Fred v. Spadaro, 332 So. 2d 110 (Fla. 1st DCA 1976)…h as the instant one must be set aside. The state contends, first, that since Spadaro did not object to the form of the verdict prior to the jury’s initial release, he waived any objection as to form, citing this court’s opinion in Whilden v. State, 301 So. 2d 35 (1 Fla.App.1974),1 and the Supreme Court’s opinion in State v. Jones, 204 So. 2d 515 (Fla.1967). In Whilden, this court observed that defense counsel affirmatively stated that he had no objection to the form of the verdict and that the verdict was i…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Davis v. Ivey, 93 Fla. 387 (Fla. 1927)
- Coppolino v. State, 223 So. 2d 68 (Fla. 2d DCA 1968)
- Isenberg v. Ortona Park Recreational Ctr., Inc., 160 So. 2d 132 (Fla. 1st DCA 1964)
- O'Neal v. State, 54 Fla. 96 (Fla. 1907)
- Mal Taylor and Nathan C. Johnson v. State, 88 Fla. 555 (Fla. 1925)
- Roberson v. State, 45 Fla. 94 (Fla. 1903)
- Gen. Motors Acceptance Corp. v. Judge of the Cir. Court, 102 Fla. 924 (Fla. 1931)
- Kent v. Polk Grocery Co., 131 Fla. 139 (Fla. 1938)