Geary v. State, 95-00328
| Decision Date | 22 May 1996 |
| Docket Number | No. 95-00328,95-00328 |
| Parties | 21 Fla. L. Weekly D1242 Shawn GEARY, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
James Marion Moorman, Public Defender, and Andrea Norgard, Assistant Public Defender, Bartow, for Appellant.
Robert A. Butterworth, Attorney General, Tallahassee, and Scott A. Browne, Assistant Attorney General, Tampa, for Appellee.
The defendant appeals his convictions and sentences for second degree grand theft and leaving the scene of an accident with injury. He raises four issues: (1) the evidence did not establish that the defendant knew a person had been injured when he left the scene of the accident; (2) the trial court did not properly instruct the jury that it must find the defendant knew of the injury; (3) the prosecutor improperly commented on the defendant's failure to call a witness; and (4) the trial court improperly included points for severe victim injury in the sentencing guidelines scoresheet.
We decline to address the first two issues because the defendant waived appellate review and the errors asserted are not fundamental. At the close of the state's case, defense counsel moved for a judgment of acquittal as to various charges filed against the defendant. However, with respect to the charge of leaving the scene of an accident with injury, counsel made no argument regarding sufficiency of the evidence. Instead, counsel stated, To preserve an issue for appellate review, it "must be presented to the lower court and the specific legal argument or ground to be argued on appeal must be part of that presentation if it is to be considered preserved." Tillman v. State, 471 So.2d 32, 35 (Fla.1985).
As to the jury instruction issue, the defendant neither requested that a specific instruction be given nor objected to the instruction that was given. "Failing to instruct on an element of the crime over which the record reflects there was no dispute is not fundamental error and there must be an objection to preserve the issue for appeal." State v. Delva, 575 So.2d 643, 645 (Fla.1991).
We also decline to address the third issue because we find the defendant's challenge to the state's comments to be without merit. Therefore, having determined that the alleged trial errors were either waived or are without merit, we affirm the convictions.
We address the fourth issue because we agree that victim injury points should not have been included in the scoresheet calculation. The defendant argues that there is no nexus between the crimes he was convicted of and the victim's injury and that the victim's injury was not severe....
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O'Leary v. Sec'y, Case No: 2:12-cv-599-FtM-2 9CM
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