Washington v. State

392 So. 2d 599, 1981 Fla. App. LEXIS 20453

Opinions

PER CURIAM.

Appellant seeks review of his conviction of aggravated battery, alleging error upon the court’s denial for his request for a jury instruction on simple battery. We find that appellant has failed to preserve the issue for appeal.

Although the record reflects that the trial judge fully understood the purpose for the appellant’s requested instruction on battery, no formal objection was made to the court’s refusal to give the denied instruction. Appellant argues that it is redundant under such circumstances to require a formal objection in order to preserve what otherwise would be reversible error. This argument might be well-taken except for the fact that Fla.R.Crim.P. 3.390(d), in no uncertain terms, requires such an objection to preserve the issue for appeal. Kelly v. State, 389 So.2d 250 (2d DCA 1980); White v. State, 324 So.2d 115 (Fla.3d DCA 1976).

Appellant having failed to preserve the issue, the judgment appealed is affirmed.

ERVIN and SHAW, JJ., concur. WENTWORTH, J., dissents with opinion.