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Thomas v. State5/29/2002
R>
t is not fundamental error to convict a defendant under an erroneous lesser included charge when he had an opportunity to object to the charge and failed to do so if:
1) the improperly charged offense is lesser in degree and penalty than the main offense or 2) defense counsel requested the improper charge or relied on that charge as evidenced by argument to the jury or other affirmative action. Failure to timely object precludes relief from such a conviction.
Here, Thomas neither requested the instruction nor affirmatively relied on it. Therefore, she may challenge her conviction unless she failed to object to the instruction. In the course of posttrial motion proceedings, a dispute arose regarding whether Thomas objected to the instruction during an unrecorded discussion at the end of the first day of trial. The trial court held an evidentiary hearing, ordered a transcript of the charge conference that took place on the second day, and subsequently entered its order denying the motion for renewed judgment of acquittal. In its order, the trial court made a finding that Thomas failed to object to the instruction. Based on the trial court's finding of fact that no objection was made, and, pursuant to Ray, Thomas is precluded from now challenging her conviction for DUI with serious bodily injury. Accordingly, we affirm the convictions for DUI with serious bodily injury and DUI with personal injury . However, we remand for correction of the judgment on count II which erroneously reflects that Thomas was adjudicated guilty of DUI with serious bodily injury as opposed to DUI with personal injury, the offense charged in the information and selected by the jury on the verdict form.
Affirmed and remanded for correction of a scrivener's error.
NORTHCUTT, J. and DANAHY, PAUL W., SENIOR JUDGE, Concur.
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