County Criminal Court: CRIMINAL PROCEDURE – Jurors and jury instructions – Jury instruction was not erroneous and did not constitute fundamental error when language not included in instruction did not relate to an element of the charged offense or an issue disputed at trial. Judgment and sentence affirmed. Tabitha Nicole Crosby v. State, No. CRC09-00005APANO (Fla. 6th Cir.App.Ct. November 16, 2009).
NOT FINAL UNTIL TIME EXPIRES FOR REHEARING
AND, IF FILED, DETERMINED
IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT
OF THE STATE OF
TABATHA NICOLE CROSBY
v. Appeal No. CRC 09-00005 APANO
Opinion filed _____________________.
Appeal from a judgment and sentence
entered by the
County Judge Susan P. Bedinghaus
Charles E. Lykes, Jr., Esquire
Attorney for Appellant
Timothy F. Sullivan, Esquire
Attorney for Appellee
ORDER AND OPINION
THIS MATTER is before the Court on Appellant, Tabatha Nicole Crosby’s appeal from a conviction, after a jury trial, of two counts of “Failure to Have a Child Attend School”, a second degree misdemeanor, in violation of § 1003.24, Fla. Stat. (2003) and § 1003.27, Fla. Stat. (2003). After review of the record and the briefs, this Court affirms the judgment and sentence.
Relevant Factual Background and Trial Court Proceedings
Appellant, Tabatha Nicole Crosby, was charged by Misdemeanor Information filed August 26, 2008. On January 27, 2009, a jury trial was conducted. During the trial the parties agreed on the jury instruction to be given as to the charged offenses. Appellant made no objection to the jury instructions read at trial. The jury found Appellant guilty on both counts of the Misdemeanor Information.
Appellant presents two issues on appeal. First, the Office of the State Attorney lacked authority to prosecute the involved charges. Second, the court used an improper jury instruction as to the charged offense.
The Authority of the State Attorney
V, Section 17 of the Florida Constitution provides that the state attorney
of each circuit “shall be the prosecuting officer of all trial courts in that circuit.” See Valdes v. State, 728 So.2d 736, 739 (Fla.1999). With respect to the prosecution of crimes,
the State acts exclusively through the offices of the state attorneys. No other
officers or agencies of the State are vested with that responsibility or power. Cook v.
State, 921 So.2d 631, 644 (
In the present case, Appellant was charged with two criminal offenses, second degree misdemeanors. The state attorney is the constitutional officer with the authority and responsibility to prosecute those offenses in County Court.
The Jury Instruction
an objection at trial,
alleged errors in jury instructions can be raised on
appeal only if fundamental error occurred. State v. Delva, 575 So.2d 643, 644 (Fla.1991). “In the context of jury instructions,
fundamental error arises only when the
trial court fails to provide proper instructions on an issue that was disputed
at trial. Id.; see also Reed v. State, 837 So.2d 366,
369 (Fla.2002). Further, an error is fundamental only when it “reach[es] down into the validity of the trial itself to the
extent that a verdict of guilty could not have been obtained without the
assistance of the alleged error.” Brown v. State, 124
So.2d 481, 484 (Fla.1960). Thus, to constitute fundamental error, an erroneous jury instruction
must both relate to a disputed issue at trial and be so erroneous as to affect
the validity of the guilty verdict.” Zeigler v. State, 2009 WL 3232684, 4 (
the present case Appellant argues the court gave an improper jury instruction
as to the charged offense. Specifically,
Florida Statute § 1003.24 requires the counseling
described in Florida Statute § 1003.26 be completed before
any prosecution can be undertaken.
Appellant argues this requirement is an element of the charged offense
and was not included in the jury instruction which was fundamental error. The difficulty with this argument is that the
requirement for counseling prior to prosecution is not an element of the
charged offense, “Failure to Have a
At trial, Appellant agreed with and certainly made no objection to the jury instruction given as to the charged offenses. That instruction was appropriate and there was no error.
For the reasons set forth above, this court concludes that the judgment and sentence of the trial court should be affirmed.
IT IS THEREFORE ORDERED that the judgment and sentence of the trial court is affirmed.
Original opinion entered by Circuit Judges R. Timothy Peters, Michael F. Andrews, & Raymond O. Gross.
cc: Honorable Susan P. Bedinghaus
Charles E. Lykes, Jr., Esquire
Office of the State Attorney
limited circumstances crimes may be prosecuted by the statewide prosecutor. See
art. IV, § 4(b),