Aguilera v. State

Full title: FAUSTINO AGUILERA, APPELLANT, v. THE STATE OF FLORIDA, APPELLEE

Court: District Court of Appeal of Florida, Third District

Date published: Jun 14, 1988

526 So. 2d 217 (Fla. Dist. Ct. App. 1988)

Opinion

No. 87-1486.

June 14, 1988.

An Appeal from the Circuit Court for Dade County; Arthur Maginnis, Judge.

Bennett H. Brummer, Public Defender and Harvey J. Sepler, Asst. Public Defender, for appellant.

Robert A. Butterworth, Atty. Gen. and Yvette Rhodes Prescott, Asst. Atty. Gen., for appellee.

Before SCHWARTZ, C.J., and NESBITT and BASKIN, JJ.

PER CURIAM.

Defense counsel's specific agreement with the trial court's determination not to instruct on an arguably necessarily lesser included offense in this non-capital case precludes raising the issue on appeal. Jones v. State, 484 So.2d 577 (Fla. 1986); Weyrick v. State, 485 So.2d 901 (Fla. 4th DCA 1986); compare Harris v. State, 438 So.2d 787 (Fla. 1983), cert. denied, 466 U.S. 963, 104 S.Ct. 2181, 80 L.Ed.2d 563 (opposite rule in capital case). On that basis, the appellant's only contention may not be considered.

Affirmed.