Holcomb v. State

Full title: LARRY EUGENE CARTER HOLCOMB, Appellant, vs. THE STATE OF FLORIDA, Appellee

Court: District Court of Appeal of Florida, Third District

Date published: Jun 28, 2000

760 So. 2d 1097 (Fla. Dist. Ct. App. 2000)

Opinion

Case No. 3D99-766.

Opinion filed June 28, 2000.

An Appeal from the Circuit Court for Dade County, Ronald Dresnick, Judge, L.T. No. 98-7590.

Bennett H. Brummer, Public Defender and Roy A. Heimlich, Assistant Public Defender, for appellant.

Robert A. Butterworth, Attorney General and Steven R. Berger, Assistant Attorney General, for appellee.

Before SCHWARTZ, C.J., and LEVY and RAMIREZ, JJ.

PER CURIAM.

The trial court's failure to instruct the jury as to an essential element of the crime of sexual battery, lack of consent, which was the primary disputed issue at the trial, constituted fundamental error which, even in the absence of objection below, requires reversal of the appellant's conviction of that crime and a new trial. See Palazzolo v. State, 754 So.2d 731 (Fla. 2d DCA 2000); Harrison v. State, 743 So.2d 178 (Fla. 3d DCA 1999), and cases cited.