Pena v. State
Pena v. State
Opinion of the Court
In response to a jury question posed during deliberations, the trial court provided a partial set of written instructions to the jury. Fla. R.Crim. P. 3.400(a) provides that upon deliberation in non-capital cases, the court may permit the jury to take any instructions given to the jury room; however, “if any instructions is [sic] taken all the instructions must be taken.” Fla. R. Crim P. 3.400(a)(3)e. We decline to consider this issue because Appellant did not object below and, therefore, failed to preserve this point for review on appeal. See Archibald v. State, 715 So.2d 1154 (Fla. 4th DCA 1998). Further, failure to provide the full set of instructions was not fundamental error. See State v. Delva, 575 So.2d 643 (Fla. 1991).
070rehearing
ON MOTION FOR REHEARING
In accordance with the supreme court’s recent decision in Wallace v. State, 23 Fla. L. Weekly 260, 724 So.2d 1176 (Fla. 1998), we grant rehearing, reverse one of appellant’s two convictions for resisting arrest with violence, and remand for judgment and sentence consistent herewith.
As to Appellant’s other point on appeal, our prior ruling, that the point was not properly preserved for appeal, is unaffected by the decision herein.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.