Wilson v. State, OO-294
| Citation | 383 So.2d 670 |
| Decision Date | 16 April 1980 |
| Docket Number | No. OO-294,OO-294 |
| Parties | James E. WILSON, Jr., Appellant, v. STATE of Florida, Appellee. /T1-124. |
| Court | Court of Appeal of Florida (US) |
John W. Tanner, P. A., Daytona Beach, for appellant.
Jim Smith, Atty. Gen., Tallahassee, and Edwin H. Duff, III, Asst. Atty. Gen., Daytona Beach, for appellee.
The defendant was charged with battery upon a law enforcement officer. Over defendant's general objection, the court instructed the jury on the crime of assault upon a law enforcement officer. The defendant was convicted of an assault upon a law enforcement officer.
An assault upon a law enforcement officer is an offense which may or may not be included in an offense of battery upon a law enforcement officer, depending upon the wording of the charge and the evidence. Brown v. State, 206 So.2d 377 (Fla.1968). There was evidence of an assault upon a law enforcement officer in this case, but the information charging battery upon a law enforcement officer did not include all of the elements of an assault. Therefore, it was error for the court to instruct the jury on the offense of assault upon a law enforcement officer.
Defendant can only assert the error on appeal if he made a timely objection to the instruction or if the error is fundamental error. Defendant's objection was timely. He failed, however, to state the grounds of his objection as required by Rule 3.390(d), Florida Rules of Criminal Procedure. Defendant's motion for new trial alleged the court had erred in instructing the jury on the offense of assault upon a law enforcement officer on the ground that the offense was not established by the evidence. At no time did defendant assert as a ground for his objection the failure of the state to allege the crime of which defendant was convicted. Therefore, though timely made, defendant's objection was insufficient to preserve the point for review.
Sanford v. Rubin, 237 So.2d 134, 137 (Fla.1970). It is a limited exception to the requirement that a trial judge must be given the opportunity to correct his or her errors. Castor v. State, 365 So.2d 701 (Fla.1978).
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Torrence v. State
...between the opinion proposed by the original panel and Carter v. State, 380 So.2d 541, 542 (Fla. 5th DCA 1980), and Wilson v. State, 383 So.2d 670 (Fla. 5th DCA 1980). The original panel would have affirmed Torrence's conviction under Count III (use of a firearm in the commission of a felon......
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Connolly v. State
...in the information, the defendant's objections were not specific enough to preserve the issue for appellate review); Wilson v. State, 383 So.2d 670, 671 (Fla. 5th DCA 1980) (finding that the defendant cannot claim error on appeal where he did not assert the State's failure to allege the nec......
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Akins v. State
...See, e.g., West v. State, 149 Fla. 436, 6 So.2d 7 (1942); Torrence v. State, 440 So.2d 392 (Fla. 5th DCA 1983); Wilson v. State, 383 So.2d 670 (Fla. 5th DCA 1980); Carter v. State, 380 So.2d 541 (Fla. 5th DCA 1980), cert. den., 388 So.2d 1110 (Fla.1980).17 See, e.g., Garcia v. State, 444 So......
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Connolly v. State, 3D09-280
...in the information, the defendant's objections were not specific enough to preserve the issue for appellate review); Wilson v. State, 383 So. 2d 670, 671 (Fla.Page 145th DCA 1980) (finding that the defendant cannot claim error on appeal where he did not assert the State's failure to allege ......