Skipper v. State

420 So. 2d 877 (1982)

Joe Henry SKIPPER, Petitioner, v. STATE of Florida, Respondent.

No. 61121.

Supreme Court of Florida.

October 7, 1982.

Joseph S. Farley, Jr., of Mahon, Mahon & Farley, Jacksonville, for petitioner.

Jim Smith, Atty. Gen. and Gregory C. Smith, Asst. Atty. Gen., Tallahassee, for respondent.

ADKINS, Justice.

We have for review a decision by the District Court of Appeal, First District (Skipper v. State, 400 So. 2d 797 (Fla. 1st DCA 1981)), which expressly and directly conflicts with a decision of another district court of appeal or of this Court on the same question of law. We have jurisdiction. Art. V, § 3(b)(3), Fla. Const.

*878 Petitioner, Joe Henry Skipper, was charged with and convicted of armed robbery. On appeal to the first district, petitioner, citing this Court's decision in Tascano v. State, 393 So. 2d 540 (Fla. 1980), contended that the trial court had erred by failing to instruct the jury on penalties. The district court held that there existed no reversible error on that issue because "[a]lthough the supplemental record establishes trial counsel's request for and denial of penalty instructions by the court, the record contains no objection in accordance with Rule 3.390(d), Florida Rules of Criminal Procedure." 400 So. 2d at 797.

The district court's opinion makes it clear that a request for instructions was made and that in refusing it, the trial court was fully aware of defense counsel's request and was given an opportunity to rule thereon. In light of our recent opinions in Spurlock v. State, 420 So. 2d 875 (Fla. 1982), and Thomas v. State, 419 So. 2d 634 (Fla. 1982), we hold that the issue was preserved for appellate review and direct that the district court remand this case for a new trial.

It is so ordered.

BOYD, OVERTON, McDONALD and EHRLICH, JJ., concur.

ALDERMAN, C.J., dissents.