Opinion
No. 97-2450
Opinion filed May 13, 1998 JANUARY TERM 1998
Appeal from the Circuit Court for the Nineteenth Judicial Circuit, St. Lucie County; Ben L. Bryan, Judge; L.T. Case No. 96-1410 CF.
Richard L. Jorandby, Public Defender, and Bernard S. Fernandez, Assistant Public Defender, West Palm Beach, for appellant.
Robert A. Butterworth, Attorney General, Tallahassee, and Ettie Feistmann, Assistant Attorney General, West Palm Beach, for appellee.
Appellant complains that the trial court erred in charging the jury on the elements of aggravated battery. Appellant's counsel did not object to the instruction given. Thus, the error was not preserved and is procedurally barred. See § 924.051(3), Fla. Stat. (1997).
While appellant claims the instruction given was fundamentally erroneous, the court read the standard instruction, and with respect to the alternative elements of proof of the crime of aggravated battery, the court properly instructed the jury in the disjunctive. This latter factor distinguishes this case from Priestley v. State, 537 So.2d 690 (Fla. 2d DCA 1989). There is not even prejudicial error, let alone fundamental error, in the instruction which the court read.
Affirm.
WARNER, KLEIN and TAYLOR, JJ., concur.