Failure to Instruct the Jury on 1 Element of the Offense Charged Consequences
In State v. Delva, 575 So. 2d 643 (Fla. 1991), the defendant was charged by information with trafficking in cocaine.
His defense at trial was that he did not know that the cocaine was in his car.
On appeal, he argued that the trial court erred in failing to instruct the jury that the defendant must have knowledge that the substance was cocaine.
The district court reversed his conviction and certified as a question of great public importance whether the trial court must instruct the jury on the knowledge element.
The Court quashed the decision of the district court, finding that failure to instruct the jury on an element of the offense charged is not fundamental error if the record shows there was no dispute as to that element.
The court said:
Failing to instruct on an element of the crime over which the record reflects there was no dispute is not fundamental error and there must be an objection to preserve the issue for appeal.
Stewart v. State, 420 So. 2d 862 (Fla. 1982) (trial court did not instruct on intent to permanently deprive as element of robbery, but defendant admitted at trial that he stole the victim's personal property);
Morton v. State, 459 So. 2d 322 (Fla. 3d DCA 1984) (no instruction on elements of robbery, but facts of robberies conceded with mistaken identity being the only contested issue), review denied, 467 So. 2d 1000 (Fla. 1985);
Williams v. State, 400 So. 2d 542 (Fla. 3d DCA 1981) (same as Morton). 575 So. 2d at 645.