Simmons v. State

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

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.

1 . The objection which was raised was without merit and is not pressed on appeal.