Tag Archives: preserved

Fundamental Error: An Exception to the Rule

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As I discussed in my previous post, generally speaking, issues must be properly and timely preserved in order for such issues to be considered on appeal.  However, in criminal cases, where an error is so serious as to be deemed fundamental, an appellate court may review such errors even if trial counsel failed to object.  Florida’s Fourth District Court of Appeal recently applied the doctrine of fundamental error.

In Brett Fenster v. State of Florida, 4D07-1983 (slip opinion, May 18, 2011) (not final until disposition of timely filed motion for rehearing), the Defendant argued, inter alia, that the prosecutor made fifteen improper comments during closing argument which warranted a new trial.  However, the Court disagreed, and held that although the comments were not proper, the comments did not rise to the level of harmful or fundamental error.  In its rationale, the Court noted that Defendant conceded that at trial, defense counsel only objected to two of the fifteen allegedly improper comments.  Nevertheless, the Court recalled that pursuant to Martinez v. State, 761 So. 2d 1074, 1082-1083 (Fla. 2000), an appellate court may consider both preserved and unpreserved errors in determining whether the preserved error was harmless beyond a reasonable doubt.  Unfortunately for Defendant, even after considering the preserved and unpreserved errors, the Fourth District ultimately concluded that any errors were harmless beyond a reasonable doubt, and that the cumulative effect of the errors did not rise to the level of fundamental error.  See Fenster, 4D07-1983, slip op. at *3 (citing Boyd v. State, 45 So. 3d 557, 560 (Fla. 4th DCA 2010) (“Improper comments rise to the level of fundamental error only where the error ‘reaches down into the validity of the trial itself to
the extent that a verdict of guilty could not have been obtained without the assistance of the alleged error.’”) (citation omitted)).

As can be seen from Fenster‘s quotation of Boyd, 45 So. 3d 557, the standard of fundamental error may be difficult to meet.  Nevertheless, the doctrine remains a viable exception to the preservation of error rule.

Preservation of Issues: Key to Success of Appeal

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The recent Eleventh Circuit opinion of Mark Duke v. Richard Allen, No. 09-16011, mentioned in my previous post, also shows how important it is for any criminal (or civil) trial attorney to properly preserve issues for subsequent review on appeal.  Perhaps if Mark Duke’s trial counsel had secured a ruling by the trial court as to whether or not the record would reflect that the prosecutor had pointed to the defendant during the prosecutor’s closing argument, the appeal could have been decided differently.

Florida appellate courts also adhere to the principal that issues not raised or preserved in the lower court are generally waived on appeal.  Appellate review of an issue in a criminal case may be precluded if counsel fails to assert a contemporaneous objection, or if counsel fails to renew objections at key stages of the criminal proceedings.  Key stages of criminal proceedings include the discovery phase, pretrial motions, voir dire and jury selection, opening statements, calling and examination of witnesses, admission of evidence, motions made during the course of the trial, closing statements, jury instructions, post trial motions, and sentencing.  If counsel fails to timely assert proper objections, or fails to renew such objections, or fails to secure a ruling on those objections, the appellate court may be precluded from considering the issue on appeal.

Discussions of different aspects of the preservation doctrine can be found in cases such as Sunset Harbour Condo. Ass’n v. Robbins, 914 So. 2d 925 (Fla. 2005), revised on reh’g, (Fla. 2005); Melbourne v. State, 679 So. 2d 759 (Fla. 1996); Castor v. State, 365 So. 2d 701 (Fla. 1978); Castaneda ex. rel. Cardona v. Redlands Christian Migrant Ass’n, Inc., 884 So. 2d 1087 (Fla. 4th DCA 2004); Taylor v. Public Health Trust of Dade County, 546 So. 2d 733 (Fla. 3d DCA 1989); City of Orlando v. Birmingham, 539 So. 2d 1133 (Fla. 1989); Franklin v. State, 965 So. 2d 79 (Fla. 2007); and, Hamilton v. R.L. Best Intern., 996 So. 2d 233 (Fla. 1st DCA 2008).