5D01-2429 Hires v. State

State: Florida

Court: Florida Fifth District Court

Docket No: 5D01-2429

Case Date: 08/19/2002

Preview:IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT JULY TERM 2002

CHRISTOPHER D. HIRES, Appellant, v. STATE OF FLORIDA, Appellee. _________________________________/ Opinion filed August 23, 2002 Appeal from the Circuit Court for St. Johns County, Robert K. Mathis, Judge. Christopher Hires, Mayo, Pro se. James B. Gibson, Public Defender, and Scott Ragan, Assistant Public Defender, Daytona Beach, for Appellant. Robert A. Butterworth, Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Appellee. CASE NO. 5D01-2429

HARRIS, J. Appellant was found guilty of battery on a law enforcement officer. During the charge conference, Hires requested instruction on the lesser included charge of simple battery. The court rejected the charge. Hires failed to object after the instructions were read to the jury,

believing that the court had clearly rejected his position. The State concedes error but asserts that the error was waived by Hires' failure to timely object after the instructions. We have previously determined that such failure to object does not preclude review of the court's erroneous refusal to give an instruction on a necessarily lesser included offense when a proper request has been made, the court clearly understood the request, and the court clearly denied it. See Rodriguez v. State, 789 So. 2d 513 ( Fla. 5th DCA 2001). REVERSED and REMANDED.

THOMPSON, C.J., and PETERSON, J., concur.

2

Download 5D01-2429 Hires v. State.pdf