Canada v. State

District Court of Appeal of Florida

Canada v. State

394 So. 2d 567, 1981 Fla. App. LEXIS 18845

CourtDistrict Court of Appeal of Florida

DecidedMarch 4, 1981

DocketNo. 78-2644/T4-326

StatusPublished

This text of 394 So. 2d 567 (Canada v. State) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Canada v. State, 394 So. 2d 567, 1981 Fla. App. LEXIS 18845 (Fla. Ct. App. 1981).

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Opinion

ORFINGER, Judge.

Appellant contends on appeal that his conviction and sentence for armed robbery should be reversed because the trial judge refused to instruct the jury on minimum and maximum penalties as requested by appellant.

The Supreme Court has now held that the failure to give the instruction on penalties when requested, constitutes error. Tascano v. State, 393 So.2d 540 (Fla.1980). Florida Rule of Criminal Procedure 3.390(d) provides that no party may assign as error on appeal the failure to give an instruction unless he properly objects thereto. Without such timely and proper objection, the failure to give the requested instruction is not preserved for appeal. Kelly v. State, 389 So.2d 250 (Fla. 2d DCA 1980).

Even though the opportunity was given by the trial court, no objection was made to the refusal of the trial court to give the requested instruction, so the issue has not been preserved for appeal.

Appellant’s assertion that the sentence imposed exceeds the maximum permitted by law has been answered contrary to his contention in Studstill v. State, 394 So.2d 1040 (Fla. 5th DCA 1981).

Accordingly, the judgment and sentence of the trial court are affirmed.

AFFIRMED.

DAUKSCH, C. J., and EVANS, VERNON W., Associate Judge, concur.

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ORFINGER, Judge.

Appellant contends on appeal that his conviction and sentence for armed robbery should be reversed because the trial judge refused to instruct the jury on minimum and maximum penalties as requested by appellant.

The Supreme Court has now held that the failure to give the instruction on penalties when requested, constitutes error. Tascano v. State, 393 So.2d 540 (Fla.1980). Florida Rule of Criminal Procedure 3.390(d) provides that no party may assign as error on appeal the failure to give an instruction unless he properly objects thereto. Without such timely and proper objection, the failure to give the requested instruction is not preserved for appeal. Kelly v. State, 389 So.2d 250 (Fla. 2d DCA 1980).

Even though the opportunity was given by the trial court, no objection was made to the refusal of the trial court to give the requested instruction, so the issue has not been preserved for appeal.

Appellant’s assertion that the sentence imposed exceeds the maximum permitted by law has been answered contrary to his contention in Studstill v. State, 394 So.2d 1040 (Fla. 5th DCA 1981).

Accordingly, the judgment and sentence of the trial court are affirmed.

AFFIRMED.

DAUKSCH, C. J., and EVANS, VERNON W., Associate Judge, concur.

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394 So. 2d 567, 1981 Fla. App. LEXIS 18845, Counsel Stack Legal Research, https://law.counselstack.com/opinion/canada-v-state-fladistctapp-1981.

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