184 So. 3d 1122
Fla. Dist. Ct. App.2015Background
- Defendant Francis Wong convicted of multiple counts of lewd/lascivious molestation and one count of lewd/lascivious battery involving minor victims.
- At charge conference defense counsel (unprepared, did not file proposed instructions) requested a permissive (category two) lesser-included instruction for "committing an unnatural and lascivious act" based on Fla. Std. Jury Instr. 11.8/11.10.
- The trial judge stated, "I don’t have to give a lesser for category two," then diverted the discussion to unrelated matters; no explicit ruling denying the instruction was entered and defense counsel did not register a contemporaneous objection after instructions were given.
- The State conceded on appeal that the accusation and evidence would have supported the permissive lesser instruction, but argued the issue was not preserved because counsel failed to secure an explicit denial or object later.
- The majority held the issue was waived for appellate review because the court did not clearly and unequivocally deny the request and defense counsel did not make the required contemporaneous objection; the judgment was otherwise affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether trial court erred by admitting Williams‑rule testimony of other minor victims | State: admission proper (no error asserted in summary) | Wong: admission fundamental error | Court: No error; claim rejected |
| Whether trial court erred in refusing to give permissive lesser included instruction (unnatural & lascivious act) | State: conceded pleading and evidence would support the lesser if preserved | Wong: requested instruction at charge conference and was entitled to it; trial court effectively denied it | Majority: Issue waived because court never explicitly denied and no contemporaneous objection; affirmed |
| Whether defense preserved the instruction issue despite lack of explicit denial | State: preservation failed—counsel didn’t obtain a ruling or object after instructions | Wong: counsel clearly requested instruction and the court understood and indicated refusal; further objection would be pointless | Concurrence (dissenting in part): Issue preserved; trial judge clearly understood and denied; would reverse and remand |
| Standard for when a requested jury instruction is preserved despite lack of post‑charge objection | State: contemporaneous objection rule requires explicit denial to excuse later silence | Wong: request + explanation + trial court’s statement sufficed under Heathcoat/Truett line | Court: Only explicit, unequivocal denial excuses failure to object; absent that, waiver applies |
Key Cases Cited
- Williams v. State, 117 So.2d 473 (Fla. 1960) (Williams‑rule evidence authority)
- Sochor v. Florida, 504 U.S. 527 (U.S. 1992) (exception to contemporaneous‑objection rule for explicitly denied advance instruction requests)
- Thomas v. State, 419 So.2d 634 (Fla. 1982) (court must explicitly deny special instruction to excuse later objection)
- Watson v. State, 651 So.2d 1159 (Fla. 1994) (failure to obtain specific denied instruction or object post‑charge results in waiver)
- Bryant v. State, 932 So.2d 408 (Fla. 2d DCA 2006) (preservation satisfied only where record shows clear, unambiguous request and explicit denial)
- Amado v. State, 585 So.2d 282 (Fla. 1991) (trial court must give permissive lesser if pleading and evidence support it)