Opinion
No. 98-3261.
Opinion filed November 19, 1999.
Appeal from the Circuit Court for St. Johns County, Robert K. Mathis, Judge.
James B. Gibson, Public Defender, and Susan A. Fagan, Assistant Public Defender, Daytona Beach, for Appellant.
Robert A. Butterworth, Attorney General, Tallahassee, and Robin A. Compton, Assistant Attorney General, Daytona Beach, for Appellee.
Tauris Hubbard appeals his judgment and sentence which were imposed by the trial court after a jury found him guilty of committing the offense of aggravated child abuse. Mr. Hubbard argues he is entitled to receive a new trial because the trial court incorrectly instructed the jury. Alternatively, he argues that his probation order should be corrected to accurately reflect the sentence imposed. We affirm Mr. Hubbard's judgment and sentence but remand for correction of the probation order.
§ 827.03(2), Fla. Stat. (1997).
Mr. Hubbard's other argument on appeal is without merit and does not warrant discussion.
The state filed an information charging Mr. Hubbard with one count of aggravated child abuse upon his girlfriend's two-year-old son. The information alleged that Mr. Hubbard did "strike [the child], a child two (2) years of age, with a braided leather belt on the back, arms, chest and facial area and causing the said child to further injure self attempting to escape the beating." The matter went to trial, and the jury found Mr. Hubbard guilty as charged. The trial court entered judgment in accordance with the jury's verdict and sentenced Mr. Hubbard to a term of 64 months' imprisonment followed by 8 years' probation.
Mr. Hubbard contends, for the first time on appeal, that the trial court issued an improper jury instruction on the crime of aggravated child abuse and the lesser included crime of child abuse. His claim of error has been waived for purposes of appellate review because, absent a timely objection, an appellate court cannot review the propriety of jury instructions unless the instructions constitute fundamental error. See Jordan v. State, 707 So.2d 816 (Fla. 5th DCA),aff'd, 720 So.2d 1077 (Fla. 1998). Fundamental error is error "so severe as to have undermined the validity of the trial `to the extent that a verdict of guilty could not have been obtained without the assistance of the alleged error.'"Larman v. State, 724 So.2d 1230, 1231 (Fla. 5th DCA 1999) (quoting State v. Delva, 575 So.2d 643, 645 (Fla. 1991)). Here, the trial court's allegedly improper instructions were irrelevant and did not prejudice Mr. Hubbard's case because the instructions erroneously placed a higher burden of proof on the state.
Mr. Hubbard also raises a challenge concerning the portion of his probation order which states that he was sentenced to a term of 80 months' imprisonment. This appears to be a typographical error since the sentencing order, as well as another portion of the probation order, indicate that Mr. Hubbard was sentenced to a term of 64 months' imprisonment. Accordingly, we remand this matter to the trial court with instructions to correct the probation order to reflect a term of 64 months' imprisonment.
JUDGMENT and SENTENCE AFFIRMED; CAUSE REMANDED FOR CORRECTION OF SENTENCING ORDER.
ANTOON, C.J., DAUKSCH and COBB, JJ., concur.