Scott v. State, 82-371

• Decision Date: 25 May 1983
• Docket Number: No. 82-371,82-371
• Citation: 431 So.2d 733
• Parties: Linda SCOTT, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 733

431 So.2d 733

Linda SCOTT, Appellant, v. STATE of Florida, Appellee.

No. 82-371.

District Court of Appeal of Florida,

Fourth District.

May 25, 1983.

Richard L. Jorandby, Public Defender, and Louis G. Carres, Asst. Public Defender, West Palm Beach, for appellant.

Jim Smith, Atty. Gen., Tallahassee, and Marlyn J. Altman, Asst. Atty. Gen., West Palm Beach, for appellee.

DOWNEY, Judge.

Appellant was charged with: Count I, manslaughter, and Count II, aggravated child abuse. The jury found her guilty of manslaughter and child abuse, a lesser included offense of Count II. Appellant was sentenced to fifteen years on Count I and five years on Count II, to run concurrently.

Appellant contends error was committed in three respects: a) failure to instruct the jury concerning its duty to weigh extra judicial statements made by the defendant, b) failure to give appellant credit for time served, c) imposition of a sentence on Count II when the offense of child abuse is included within the crime for which appellant was convicted and sentenced in Count I.

Appellant requested the court to instruct the jury on the manner in which they should evaluate extra judicial inculpatory statements made by a defendant. The written request was identical to Florida Standard Jury Instruction (Criminal) 2.04(e) except that the word "whether" was substituted for the word "that," so that the instruction read "whether the defendant's alleged statement" was voluntarily made. The standard instruction reads "that the defendant's alleged statement" was voluntarily made. The court refused appellant's written instruction but advised it would give Florida Standard Instruction (Criminal) 2.04(e). However, in charging the jury no such instruction was given. Appellant objected to the court's failure to give her requested instruction but never specifically called the court's attention to the failure to give the standard instruction. An instruction should have been given in either form, Bunn v. State, 363 So.2d 16 (Fla. 3d DCA 1978); Taylor v. State, 320 So.2d 428 (Fla. 2d DCA 1975); but appellant failed to properly preserve the oversight by an adequate objection. In any event, even if the error had been preserved, we believe it was harmless.

Appellant's second point is meritorious. In sentencing appellant, the trial judge failed to give her credit for time served.

With reference to appellant's third point we believe that the allegations and proof make aggravated child abuse, the crime charged in count two, a "Brown -4" lesser included offense of manslaughter, the crime charged in count one.

The manslaughter count alleged that the defendant caused the death of her son "by beating upon his body and/or inflicting mortal injuries...." The aggravated child abuse count alleged that the defendant maliciously punished and/or willfully tortured her son "by beating upon his body...." One element of proof in this case was a statement from the defendant in which she admitted to striking the child two or three times before he became unconscious. Physical evidence and expert testimony confirmed her admission. Thus, the precise allegations in the information were borne out in the proof at trial.

Brown v. State, ...