Does Failure to Define Element of Malice Amount to Fundamental Error In Child Abuse ?
In Reed v. State, 837 So. 2d 366 (Fla. 2002), the court held that in aggravated child abuse cases, the failure to accurately define the element of malice constitutes fundamental error if the malice element was disputed at trial. 837 So. 2d at 369.
Reed reaffirmed a principle set forth in State v. Delva, 575 So. 2d 643, 645 (Fla. 1991), a decision by this Court that addressed an unpreserved claim of error, that "failing to instruct on an element of the crime over which the record reflects there was no dispute is not fundamental error."