Benton v. State

650 So. 2d 688, 1995 WL 67077

• Court: District Court of Appeal of Florida
• Decided: February 21, 1995
• Docket: 93-723
• Status: Published

Opinion

650 So.2d 688 (1995)

Tommy BENTON, Appellant,
v.
STATE of Florida, Appellee.

No. 93-723.

District Court of Appeal of Florida, First District.

February 21, 1995.

Nancy A. Daniels, Public Defender, Chris W. Hoeg, Asst. Public Defender, Tallahassee, for appellant.

Tommy Benton, pro se.

Robert A. Butterworth, Atty. Gen., Sonya Roebuck Horbelt, Asst. Atty. Gen., Tallahassee, for appellee.

PER CURIAM.

Appellant, an inmate at Glades Correctional Institution, was charged with and found guilty of battery on a law enforcement officer in connection with an incident at the correction institution. In his appeal, appellant asserts that, among other things, the trial court committed reversible error in failing to instruct the jury on simple battery, a necessary lesser included offense of battery on a law enforcement officer. We conclude that, although the simple battery instruction must also be given even where the evidence is undisputed that the alleged victim is a law enforcement officer, State v. Wimberly, 498 So.2d 929 (Fla. 1986), and Williams v. State, 611 So.2d 94 (Fla. 1st DCA 1992), the appellant's failure below to object to the jury instructions or to request an instruction on simple battery precludes appellant from raising this issue on appeal. Daniels v. State, 587 So.2d 460 (Fla. 1991), Roman v. State, 475 So.2d 1228 (Fla. 1985), cert. denied, 475 U.S. 1090, 106 S.Ct. 1480, 89 L.Ed.2d 734 (1986); Rule 3.390(d), Fla.R.Crim.P. Accordingly, we affirm.

AFFIRMED.

BOOTH, MICKLE and VAN NORTWICK, JJ., concur.