Opinion
No. 1D20-361
04-08-2021
Correll V. JOHNSON, Appellant, v. STATE of Florida, Appellee.
Jessica J. Yeary, Public Defender, and Kathryn Lane, Assistant Public Defender, Tallahassee, for Appellant. Ashley Moody, Attorney General, and Damaris E. Reynolds, Assistant Attorney General, Tallahassee, for Appellee.
Jessica J. Yeary, Public Defender, and Kathryn Lane, Assistant Public Defender, Tallahassee, for Appellant.
Ashley Moody, Attorney General, and Damaris E. Reynolds, Assistant Attorney General, Tallahassee, for Appellee.
Per Curiam.
Correll Johnson (Appellant) was convicted on four counts for sexually abusing a child, sentenced to life in prison, and fined a bulk amount of just over $3,000 dollars. Because the trial court was tasked with individually pronouncing each discretionary fine to be imposed, regardless of any waiver by Appellant to a reading of the statutory authority, we agree with Appellant that the trial court's imposition of fines must be reversed pursuant to Johnson v. State , 293 So. 3d 582, 584–85 (Fla. 1st DCA 2020) (holding that a defendant's waiver of a reading of the statutory authority for discretionary fines did not absolve a trial court of its responsibility to individually pronounce the fines (citing Nix v. State , 84 So. 3d 424, 426 (Fla. 1st DCA 2012) )).
In Appellant's second issue, he challenges his judgment on count one, claiming his conviction must be reversed because the charge of Lewd and Lascivious Molestation could not constitute a permissive lesser included offense of the Sexual Battery charged in the information. Finding the issue was not preserved below, we affirm.
The charging language for count one alleged that Appellant had sexually battered the child victim by vaginally penetrating her with his finger, but no other details were included. After the State rested its case-in-chief, the defense moved for a judgment of acquittal. The State eventually agreed that it had failed to show a prima facie case on count one, but the prosecutor suggested that the charge of Lewd and Lascivious Molestation could be substituted and submitted to the jury. The trial court asked defense counsel for a response, and counsel stated, "I don't think that the lewd and lascivious molestation, victim under twelve, is a lesser included offense." The court acknowledged that the charge was indeed not listed as a lesser included offense of Sexual Battery, however, it agreed that the testimony appeared to support the molestation charge. The court then asked defense counsel whether he agreed that the facts would constitute a Lewd and Lascivious Molestation, and counsel responded, "yes, sir." No other statements or arguments were made on the point, and no objection was logged when the jury was instructed that count one alleged Lewd and Lascivious Molestation.
Regardless of the merits of Appellant's argument, we agree with the State that the issue is unpreserved, albeit under different reasoning from that offered by the State. "An appeal may not be taken from a judgment or order of a trial court unless a prejudicial error is alleged and is properly preserved ...." § 924.051(3), Fla. Stat. (2019). The Florida Supreme Court has explained that proper preservation of an appellate argument involves three components:
First, a litigant must make a timely, contemporaneous objection. Second, the party must state a legal ground for that objection. Third, in order for an argument to be cognizable on appeal, it must be the specific contention asserted as legal ground for the objection, exception, or motion below.
Harrell v. State , 894 So. 2d 935, 940 (Fla. 2005) (alterations, quotations, and citations omitted).
The preservation requirement's purpose is to "insure that the trial judge is made aware that an objection is being made and that the grounds therefor are enunciated." Hubbard v. State , 411 So. 2d 1312, 1314 (Fla. 1st DCA 1981). Magic words such as "I object" are not required for proper preservation, so long as it is clear that the trial court "was fully aware that an objection had been made, that the specific grounds for the objection were presented [ ], and that the judge was given a clear opportunity to rule on the objection." Id. at 1314–15.
Appellant acknowledges that the only offering from trial counsel which could conceivably be taken as an objection was counsel's general statement that he did not think that Lewd and Lascivious Molestation was a lesser included offense of Sexual Battery. Appellant argues that this statement served as an objection to the molestation charge being put to the jury. We disagree. Even if no specific words are required, it must be clear that the trial court was aware of an objection being logged. Counsel's general thoughts failed to clearly convey an objection to the inclusion of the Lewd and Lascivious Molestation charge in place of the Sexual Battery charge, and counsel's musings were immediately followed by his agreeing with the court that the evidence supported the charge. Because the record does not clearly convey that the trial court was aware that Appellant objected to Lewd and Lascivious Molestation being included as a lesser offense, no objection on the issue has been preserved on appeal.
As previously indicated, this was not the rationale offered by the State. Instead, the State accepts that defense counsel's initial comment was an objection, however, it argues that the objection was "abandoned" "because it was not renewed" pursuant to State v. Ivey , 285 So. 3d 281, 286 (Fla. 2019). Because we disagree that any objection was ever logged at all, it is not necessary to determine whether the objection could be or was abandoned. Because we determine that this issue was not preserved below, the trial court's judgment and sentence regarding count one is affirmed.
AFFIRMED , in part, and REVERSED , in part.
Jay, M.K. Thomas, and Nordby, JJ., concur.