Williams v. State, 79-2190
| Decision Date | 25 March 1981 |
| Docket Number | No. 79-2190,79-2190 |
| Citation | 395 So.2d 1236 |
| Parties | Floyd Norton WILLIAMS, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Richard L. Jorandby, Public Defender, and Tatjana Ostapoff, Asst. Public Defender, West Palm Beach, for appellant.
Jim Smith, Atty. Gen., Tallahassee, and Max Rudmann, Asst. Atty. Gen., West Palm Beach, for appellee.
In this appeal from a conviction of sexual battery, defendant, appellant here, attacks the trial court's refusal to instruct the jury on the defense of alibi. Before reaching the merits, we must first determine whether trial counsel made an objection and preserved this point for appeal pursuant to the requirements of Rule 3.390(d) Fla.R.Crim.P.
During the jury instruction conference the following colloquy occurred:
There was no further discussion on the matter. At the conclusion of its charge to the jury the court inquired whether there were "any additional objections to the charges." Defense counsel objected on another point but did not again raise the court's failure to give the alibi instruction.
Rule 3.390(d) is quite specific:
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 to which he objects, and the grounds of his objection. Opportunity shall be given to make the objection out of the presence of the jury.
In a recent application of this rule, we held that appellate review of a trial court's refusal to give a special requested jury instruction was precluded because although counsel had submitted a written instruction, he failed to object and list the grounds for objection when that instruction was rejected. Smith v. State, 378 So.2d 117 (Fla. 4th DCA 1980). To dispel the expressed concern that Smith elevates form over substance and requires an over-technical reading of the rule, we revisit that decision in the context of a clarification of the rule's parameters.
The civil counterpart to Rule 3.390(d) states in part:
(T)he parties shall file written requests that the court charge the jury on the law set forth in such requests.... No party may assign as error the giving of any charge unless he objects thereto at such time or the failure to give any charge unless he requested the same.
Fla.R.Civ.P. 1.470(b). Under this language, error in failing to give an instruction is preserved as long as a written jury instruction is tendered to the trial court. Although explicit in its requirements, Rule 3.390(d) does not contain such language. Thus, it is evident that preserving error pursuant to the criminal rule necessitates more than submission of a request for an instruction.
If a jury instruction is requested and the basis for the request verbalized to the court and made a part of the record, failure to object to rejection of the instruction or to repeat the grounds in the form of an objection does not preclude appellate review. The underlying purpose of Rule 3.390(d) has been met; the trial court is placed on notice that refusal to give the requested instruction may be error. However, if, as in Smith, a jury instruction is tendered without further explanation, the subsequent failure to object on specific...
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