Hubbard v. State, VV-439

• Decision Date: 10 July 1981
• Docket Number: No. VV-439,VV-439
• Citation: 411 So.2d 1312
• Parties: Harold C. HUBBARD, III, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 1312

411 So.2d 1312

Harold C. HUBBARD, III, Appellant, v. STATE of Florida, Appellee.

No. VV-439.

District Court of Appeal of Florida, First District.

July 10, 1981.

On Rehearing Feb. 23, 1982.

Rehearing Denied April 29, 1982.

Michael Allen, Public Defender, and Nancy A. Daniels, Asst. Public Defender, Tallahassee, for appellant.

Jim Smith, Atty. Gen., and Raymond L. Marky, Asst. Atty. Gen., Tallahassee, for appellee.

PER CURIAM.

We affirm the appellant's conviction for the knifepoint robbery of a convenience store. Of Hubbard's seven points on appeal, two require comment.

Hubbard was seventeen years old and subject to the jurisdiction of the juvenile justice system when the crime occurred on July 18, 1977. Section 39.01(4), 39.02, Florida Statutes (1977). At the time, a juvenile could be involuntarily transferred into the adult criminal justice system in two ways: pursuant to a waiver hearing conducted by a judge, or upon indictment by the Grand Jury for crimes punishable by death or life imprisonment. Section 39.02(5)(a), (c), Florida Statutes (1977). In 1978, the legislature enacted 39.04(2)(e)4 which permits state attorneys to charge sixteen and seventeen year old juveniles as adults by filing informations directly in circuit court, thereby bypassing the juvenile system. After this provision took effect, the state attorney filed an information charging Hubbard with the 1977 robbery with a deadly weapon. On appeal, Hubbard argues that because the "direct file" statute was not in effect at the time of the crime, the prosecutor's procedure was an impermissible ex post facto application of law. ¹

Under the circumstances of this case we disagree because application of the direct file statute did not substantively alter Hubbard's situation to his disadvantage. See Prince v. State, 398 So.2d 976 (Fla. 1st DCA 1981). Robbery with a deadly weapon is a crime punishable by life imprisonment, Section 812.13(2)(a), so the state attorney at the time of the commission of the crime could have initiated indictment proceedings to have the defendant tried as an adult. In the context of waiving juvenile jurisdiction, the difference between indictment and information is procedural, not substantive. State v. Cain, 381 So.2d 1361 (Fla.1980). ² Therefore, Hubbard's motion to dismiss ³ was properly denied.

The appellant also urges reversible error in the trial court's denial of his request for a jury instruction on minimum and maximum penalties. See Tascano v. State, 393 So.2d 540 (Fla.1980), reh. denied February 27, 1981. However, Hubbard did not object to the judge's failure to give such an instruction, so this point is not preserved for our determination. Holland v. State, 400 So.2d 767, No. WW-55 (Fla. 1st DCA opinion filed April 10, 1981) (1981 F.L.W. 860). But see Williams v. State, 399 So.2d 999 (Fla. 3rd DCA 1981), n. 6; Saulsberry v. State, 398 So.2d 1017 (Fla. 5th DCA 1981).

Accordingly, judgment of the trial court is AFFIRMED.

ROBERT P. SMITH, Jr., C. J., and LARRY G. SMITH and JOANOS, JJ., concur.

ON MOTION FOR REHEARING EN BANC

JOANOS, Judge.

In his pleading styled "Motion for Rehearing, Rehearing in Banc, or Certification," appellant Hubbard has set forth a number of arguments directed at our earlier per curiam opinion in this proceeding. We reaffirm our earlier opinion regarding all points except the issue of the trial judge's failure to instruct the jury on penalties. In regard to that issue and especially the question of "What is required under Florida Rule of Criminal Procedure 3.390(d) for preserving as a point on appeal, a judge's failure to give a requested instruction?", we have determined under Florida Rule of Appellate Procedure 9.331 that en banc consideration should be afforded in order to maintain uniformity in this Court's decisions.

After en banc consideration we hold that Hubbard's conviction and sentence should be reversed and remanded for a new trial because of the judge's failure to give an instruction on penalties as required by Tascano v. State, 393 So.2d 540 (Fla.1980). ¹

In the earlier opinion in this proceeding, appellant's argument for a new trial based on Tascano was rejected for the reason that appellant "did not object" and, therefore, the point was not preserved for appellate review. To support that position, we cited an earlier opinion of this Court, Holland v. State, 400 So.2d 767 (Fla. 1st DCA 1981). However, since our initial opinion was released, the earlier Holland opinion was vacated on rehearing, 400 So.2d 768 (Fla. 1st DCA 1981), with the Court holding that a colloquy in the record there sufficiently preserved the failure to give a requested instruction for appellate review. The verbal exchange between judge and counsel in Holland is similar to what occurred between judge and counsel in the instant appeal. This development has resulted in what we view as a conflict between the opinion on rehearing in Holland and earlier opinions of this Court, including Washington v. State, 392 So.2d 599 (Fla. 1st DCA 1981), Davenport v. State, 396 So.2d 232 (Fla. 1st DCA 1981), and Spurlock v. State, 403 So.2d 435 (Fla. 1st DCA 1981).

Our quest to resolve the issue begins with reference to Florida Rules of Criminal Procedure 3.390(d):

No party may assign as error grounds of appeal the giving or the failure to give an instruction unless he objects thereto before the jury retires to consider its verdict, stating distinctly the matter of which he objects, and the grounds of his objection. Opportunity shall be given to make the objection out of the presence of the jury. ²

It is clear from a reading of the rule that a defendant must object to a trial judge's failure to give a requested instruction and that the grounds for the objection must be stated.

In Castor v. State, 365 So.2d 701, 703 (Fla.1978), the Supreme Court stated that to satisfy the rule, "... an objection must be sufficiently specific both to apprise the trial judge of the putative error and to preserve the issue for intelligent review on appeal." We believe that this statement best describes the objective of Rule 3.390(d). The primary thrust of the rule is to insure that the trial judge is made aware that an objection is being made and that the grounds therefor are enunciated. We do not believe that the rule was intended to approve or disapprove a special word formula; we will not exalt form over substance by requiring that counsel use the magic words, "I object," so long as it is clear that the trial judge was fully aware that an objection had been made, that the specific grounds for the objection were presented to the judge, and that the judge was given a clear opportunity to rule upon the objection.

In considering the motion filed by Hubbard in this proceeding, we have studied the colloquy between the trial judge and Hubbard's counsel. It is now our view that the requirements of Florida Rule of Criminal Procedure 3.390(d) were fulfilled for preserving as a point on appeal the judge's failure to instruct the jury on penalties. The trial court asked Hubbard's attorney if he wished to have an instruction on penalties and the attorney responded that he did. The trial judge refused the instruction, stating:

Well for the reasons that I have expressed in previous trials I have had with both of you gentlemen, I decline to instruct on penalties relying on the First District Court decision which the name of the case escapes me for the moment.

After the instructions were given, the trial court asked the attorneys if there were any "exceptions or objections to the instructions as given other than those already duly noted," and appellant's attorney responded, "none." Thus, it is clear from the record that the trial judge was treating Hubbard's counsel's position as an objection to the instructions. It is further clear that he was aware of the grounds for the objection and his reason for overruling the objection was set out by his reference to "the First District Court decision" which was obviously Tascano v. State, 363 So.2d 405 (Fla. 1st DCA 1978) which was reversed by the Supreme Court after the trial in the instant proceeding in Tascano v. State, 393 So.2d 540 (Fla.1981).

Our opinion here is consistent with our opinion on rehearing in Holland. That trial occurred two weeks before the trial in this case and it involved the same judge and defense attorney. At the Holland charge conference, the judge made it clear to defense counsel that he was not going to give an instruction on penalties. In the process the trial judge cited this court's decision in Tascano as support for his denial of the request. Before the jury retired, the judge asked if there were "any exceptions or objections to the instructions as given, other than those already duly noted?" The lawyer replied: "No, sir." The Holland panel found that the circumstances were such as to "... indicate an objection on the record to the failure of the trial court to give such instruction."

However, our opinion here is somewhat inconsistent with our opinions in Washington, Davenport and Spurlock on the issue of the requirements of Rule 3.390(d) and we, therefore, recede from those opinions to the extent that they conflict with this one.

We hold that where the record demonstrates the trial judge was fully aware that an objection was made to the failure to instruct on penalties, that the specific grounds for the objection were presented, and that the judge was given a clear opportunity to rule on the objection, then the issue is preserved for appellate review.

REVERSED and REMANDED for new trial.

ROBERT P. SMITH, Jr., C. J., and McCORD, MILLS, ERVIN, LARRY G. SMITH, SHIVERS, SHAW, WENTWORTH, THOMPSON and WIGGINTON, JJ., concur.

BOOTH, J., dissenting.

BOOTH, Judge, dissenting:

I do not agree with my colleagues that defendant has preserved the "Tascano " issue for appeal. The record reveals that defense counsel failed to state an objection at any point...