LARRY DARNELL BEAMON, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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The court held that the defendant's claims regarding jury instructions were without merit because the issues were not properly preserved for appeal and the alleged errors were not prejudicial.
[1] Failure to timely object to a jury instruction waives the issue for appellate review.
[2] A trial court has discretion whether to instruct the jury on the penalty for an offense.
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Join FLexlaw to unlock all legal intelligenceThe defendant was convicted of robbery and displaying a firearm. The trial judge inadvertently failed to instruct the jury on the lesser offense and i…
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PER CURIAM.
The defendant Beamon was found guilty by a jury of the offenses of robbery and displaying a firearm while committing a felony. The court adjudicated him guilty and imposed sentence of sixty years in the state penitentiary.
The only point raised by the appellant pertains to certain instructions given to the jury by the court after the panel had retired to initially deliberate on the original charges. In essence, the record shows that the trial judge was given this case to try shortly before the trial was actually scheduled to commence. Through inadvertence, the judge failed to instruct the jury upon the less severe offense, count two of the information (displaying a firearm), and he also did not give the jury the penalty fixed by law after giving thq jury the proper instructions on count two.
In toto, the jury was recalled twice for further instructions. The appellant complains that the “totality of the circumstances” reveals that the instructions were confusing, over-emphasizing certain issues, all to the defendant’s prejudice.
Our scrutiny of the record, however, demonstrates that the appellant’s contention is without merit.
First, it is clear that the appellant did not timely object to the court’s failure to instruct on count two, and he therefore did not properly preserve that issue for appellate consideration. Florida RCrP 3.390 (d); F.A.R. 6.7 (g); Clements v. State, Fla.App.1973, 284 So. 2d 700; Moore v. State, Fla.App. 1974, 299 So. 2d 119.
Next, while the judge initially did not inform the jury as to the penalty for count two, he did recall the jurors for a second time in order to relate the penalty. In any event, it is now the law that the giving of such, a charge is discretionary with the trial court. Johnson v. State, Fla.1974, 308 So. 2d 38.
Finally, we think the errors complained of have not been shown to be either confusing or so prejudicial as to mandate a new trial. Cf. Dykman v. State, Fla.App. 1974, 300 So. 2d 695.
Therefore, for the reasons stated, the judgment and sentence appealed are affirmed.
Affirmed.
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Citator
Cited By
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State v. Terry, 336 So. 2d 65 (Fla. 1976)…la.App. 1st 1975); Cooper v. Wainwright, 308 So. 2d 182 (Fla.App. 4th 1975); Gomez v. State, 309 So. 2d 56 (Fla.App. 2d 1975); Pullman v. State, 311 So. 2d 753 (Fla.App. 3rd 1975); Sweet v. State, 313 So. 2d 130 (Fla.App. 2nd 1975); Beamon v. State, 314 So. 2d 604 (Fla.App. 3rd 1975); Wheat v. State, 315 So. 2d 203 (Fla.App. 1st 1975); Roper v. State, 315 So. 2d 206 (Fla.App. 1st 1975); Howard v. State, 316 So. 2d 654 (Fla. App. 3rd 1975); Kelsey v. State, 317 So. 2d 445 (Fla.App. 1st 1975) and Davis v. State…
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Tascano v. State, 363 So. 2d 405 (Fla. 1st DCA 1978)…C.A. 1976); Kelsey v. State, 317 So. 2d 445 (Fla. 1st D.C.A. 1975); Howard v. State, 316 So. 2d 654 (Fla. 3d D.C.A. 1975); Wheat v. State, 315 So. 2d 203 (Fla. 1st D.C.A. 1975); Roper v. State, 315 So. 2d 206 (Fla. 1st D.C.A. 1975); Beamon v. State, 314 So. 2d 604 (Fla. 3d D.C.A. 1975); Sweet v. State, 313 So. 2d 130 (Fla. 2d D.C.A. 1975); Pullman v. State, 311 So. 2d 753 (Fla. 3d D.C.A. 1975); Gomez v. State, 309 So. 2d 56 (Fla. 2d D.C.A. 1975); Cooper v. Wainwright, 308 So. 2d 182 (Fla. 4th D.C.A. 1975); Ba…
Authorities Cited
- Johnson v. State, 308 So. 2d 38 (Fla. 1974)
- Moore v. State, 299 So. 2d 119 (Fla. 3d DCA 1974)
- Dykman v. State, 300 So. 2d 695 (Fla. 3d DCA 1974)
- Clements v. State, 284 So. 2d 700 (Fla. 3d DCA 1973)
- Lawrence v. Hethcox, 284 So. 2d 700 (Fla. 3d DCA 1973)