HIRES v. STATE (2002)

District Court of Appeal of Florida,Fifth District.

Christopher D. HIRES, Appellant, v. STATE of Florida, Appellee.

No. 5D01-2429.

Decided: August 23, 2002

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.

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.

HARRIS, J.

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

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