Can the Failure to Give a Jury Instruction on An Element of Crime Become a Fundamental Error ?
In Reed v. State, 837 So. 2d 366 (Fla. 2002), the Court held that the failure to give a jury instruction on an element of a crime is fundamental error if the element was disputed at trial.
However, as the dissent points out, we have affirmed a conviction where the State failed to offer evidence on one element of a crime when that element was not disputed at trial. See F.B. v. State, 852 So. 2d 226 (Fla. 2003) (holding that the insufficiency of the evidence to prove one element of a crime does not constitute fundamental error where the defendant failed to object or to move for judgment of acquittal on this ground). the Court clearly stated in F.B. that our affirmance was premised on the fact that the defendant had not preserved the issue of the sufficiency of the evidence for appellate review. Id. at 231.