Edward SPURLOCK, Petitioner,
v.
STATE of Florida, Respondent.
Supreme Court of Florida.
Melanie Ann Hines, Asst. Public Defender, Second Judicial Circuit, Tallahassee, for petitioner.
Jim Smith, Atty. Gen. and Lawrence A. Kaden, Asst. Atty. Gen., Tаllahassee, for respondent.
ADKINS, Justice.
We have for review a decision by the District Court of Appeal, First District, Spurlock v. State,
Petitioner, Edward Spurlock, was charged with and tried for armed robbery. At the jury chаrge conference held during his trial, the following exchange took place:
THE COURT: That motion is denied on the grounds it is contradictory to the other charge of the court to the jury about the consequences of their verdict. The penalty should not enter into their verdict at all. Therefore, I refuse to give the instruction on penalty following that great jurist by the name оf Hugh M. Taylor, who also refused to give penalty and thus changed the law.
Are there any objections to the charges to be given or any request for additional charges?
MR. PAULK: None from the state, Your Honor.
MR. BODIFORD: None from the defendant, Your Honor.
THE COURT: Other than what the court indicated about penalty.
Petitioner was thereаfter found guilty of the charges and sentenced to fifteen years imprisonment.
On his appeal of sentence to the first district court, petitioner moved for summary reversal and remand on the basis of this *876 Court's ruling in Tascano v. State,
We find that petitioner adequately preserved the jury instruction question for apрellate review. Rule 3.390(d) provides:
No party may assign as error grounds of appeal the giving or the failure to give an instruсtion unless he objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which he objects, аnd the grounds of his objection. Opportunity shall be given to make the objection out of presence of the jury.
Defensе counsel requested that instructions on penalties be given and was refused. The court then asked whether there were "any objections to the charges to be given or any requests for additional charges," to which both attorneys answered no, and then the court added, "other than what the Court indicated about penalty." (Emphasis supplied.) Reading the "other than ..." statement in conjunction with the preceding inquiry about objections leads to the conclusion that the court recognized an objection on petitioner's part. We think thаt the passage can be read as, "Are there any objections to the charges to be given ... [o]ther than what the court indicated about penalty?" Our recent decision in Thomas v. State,
The court ... clearly understood Thomas' position, and further argument or objection would have been futile. This factual situation satisfiеs the objectives of the contemporaneous objection rule "to apprise the trial judge of the putative error and to preserve the issue for intelligent review on appeal." Castor v. State,365 So.2d 701 at 703. We agree with both the fourth and first districts that, in а situation such as this, it is not necessary to say, "I object," and state the grounds therefor where the record shows, clearly and unambiguously, that the request was made and that the trial court clearly understood the request and, just as clearly, denied that specific request.
Thomas v. State, at 636 (footnote omitted).
The situation here is exactly the type envisioned in Thomas. Clearly, the request was made and the trial court was aware of and denied it. Further argument would have bеen futile and thus was unnecessary.
As the Thomas decision indicated, the first district has receded from its ruling herein with regard to the requirements of rulе 3.390(d). See Hubbard v. State,
The primary thrust of the rule is to insure that the trial judge is made aware that an objection is being made and that the grounds therefor are enunciated. We do not believe that the rule was intended tо approve or disapprove a special word formula; we will not exalt form over substance by requiring that cоunsel use the magic words, "I object," so long as it is clear that the trial judge was fully aware that an objection had been made, that the specific grounds for the objection were presented to the judge, and that the judge was given a clear opportunity to rule upon the objection.
*877 The district court's observations in Hubbard are quite reasonable and persuasive, and are particularly applicable in the case sub judice. The trial judge was aware of petitioner's objection regarding jury instructions and had аn opportunity to rule thereon. The missing "magic words" do not concern us because the necessary substance was present.
The only other issue presented for review is whether our decision in Tascano should be applied in this case. We stated in Tascano that parties like respondent that had prеserved on appeal the penalty instruction issue were to have the benefit of our interpretation of rule 3.390(d). Rеspondent contends that such "retroactive" application of the Tascano ruling was ill-considered, that Tascano should only be prospectively applied, and that petitioner is not entitled to the benefit of that ruling because his case commenced before the rеndition of Tascano. Respondent's arguments do not, however, persuade us that we erred in Tascano and we decline to modify the same.
Having found that the jury instruction question was preserved for review and that our ruling in Tascano is applicable here, we quash the district court's ruling and direct that it remand this case for a new trial.
It is so ordered.
BOYD, OVERTON, McDONALD and EHRLICH, JJ., concur.
ALDERMAN, C.J., dissents.