Simmons v. State

District Court of Appeal of Florida

Simmons v. State

891 So. 2d 627, 2005 Fla. App. LEXIS 886, 2005 WL 180929

CourtDistrict Court of Appeal of Florida

DecidedJanuary 26, 2005

DocketNo. 3D03-2099

StatusPublished

This text of 891 So. 2d 627 (Simmons 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.

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Simmons v. State, 891 So. 2d 627, 2005 Fla. App. LEXIS 886, 2005 WL 180929 (Fla. Ct. App. 2005).

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Opinion

SCHWARTZ, Senior J.

Whether or not we agree with the opinion in Walker v. State, 853 So.2d 498 (Fla. 1st DCA 2003), review granted, 864 So.2d 401 (Fla.2004), that the standard jury instruction concerning the effect of a defendant’s possession of recently stolen property may constitute a comment on the evidence, see Fenelon v. State, 594 So.2d 292 (Fla.1992), we do not have occasion in this case either directly to so indicate, or, as in Walker, to certify the issue to the supreme court. This is because, although the defendant objected to the instruction below, his counsel did not raise the ground for that objection which is presently asserted.¹ As the supreme court held in Hutchinson v. State, 882 So.2d 943, 950 (Fla.2004), the failure below specifically to make the claim that the instruction amounted to a judicial comment on the evidence precludes that issue from even being considered on appeal.

Affirmed.

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SCHWARTZ, Senior J.

Whether or not we agree with the opinion in Walker v. State, 853 So.2d 498 (Fla. 1st DCA 2003), review granted, 864 So.2d 401 (Fla.2004), that the standard jury instruction concerning the effect of a defendant’s possession of recently stolen property may constitute a comment on the evidence, see Fenelon v. State, 594 So.2d 292 (Fla.1992), we do not have occasion in this case either directly to so indicate, or, as in Walker, to certify the issue to the supreme court. This is because, although the defendant objected to the instruction below, his counsel did not raise the ground for that objection which is presently asserted.¹ As the supreme court held in Hutchinson v. State, 882 So.2d 943, 950 (Fla.2004), the failure below specifically to make the claim that the instruction amounted to a judicial comment on the evidence precludes that issue from even being considered on appeal.

Affirmed.

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891 So. 2d 627, 2005 Fla. App. LEXIS 886, 2005 WL 180929, Counsel Stack Legal Research, https://law.counselstack.com/opinion/simmons-v-state-fladistctapp-2005.

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