Opinion
No. 81-361.
March 23, 1982. Rehearing Denied May 10, 1982.
Appeal from the Circuit Court, Dade County, James R. Jorgenson, J.
Bennett H. Brummer, Public Defender and Thomas S. Wilson, Jr., Sp. Asst. Public Defender, for appellant.
Jim Smith, Atty. Gen. and Paul Mendelson, Asst. Atty. Gen., for appellee.
Before SCHWARTZ, NESBITT and BASKIN, JJ.
Defendant Anthony Davis challenges his conviction for unlawful possession of a firearm while engaged in a criminal offense, citing his acquittal of the underlying felony of attempted murder in the first degree and the decision of the Supreme Court of Florida in Redondo v. State, 403 So.2d 954 (Fla. 1981). He argues that, despite his agreement that the court respond to a jury question by advising the jury that it could find the defendant not guilty of attempted first degree murder and guilty of the firearm charge, he is entitled to reversal under the Redondo decision issued after his trial. We disagree.
While we recognize that defense counsel's acquiescence stemmed from his reliance upon our earlier decision in Redondo v. State, 380 So.2d 1107 (Fla. 3d DCA 1980), reversed, 403 So.2d 954 (Fla. 1981), we are nevertheless compelled to hold that his failure to object to the instruction precludes him from asserting the issue on appeal. Ray v. State, 403 So.2d 956 (Fla. 1981); Smith v. State, 375 So.2d 864 (Fla. 3d DCA 1979); McPhee v. State, 254 So.2d 406 (Fla. 1st DCA 1971).
THE COURT: The jurors have written a question which I want marked and kept in the file. The question is as follows: Is it possible to have not guilty on the first and guilty on the second? And how do you propose to answer that?
MR. ROSENBAUM: [The prosecutor] Yes.
MR. WILSON: [The defense counsel] Yes, that's an accurate statement of law.
THE COURT: Is there any objection to writing down "Yes," at the bottom of the piece of paper and hand it to them? At the conclusion of their deliberations, we shall retrieve the paper back from them and keep it in the file.
MR. WILSON: Yes.
MR. ROSENBAUM: Fine.
THE COURT: I'll sign my name.
MR. WILSON: Might as well date it too, Judge.
THE COURT: December 15. Will you please hand it to them.
For these reasons, we affirm the defendant's conviction. Because section 958.10, Florida Statutes (1979) does not authorize a probationary period, we remand the cause for correction of the sentence. Defendant's presence is not required.