Summary
holding that failure to prove an essential element of an offense does not constitute fundamental error which may be raised for the first time on appeal
Summary of this case from Williams v. StateOpinion
No. 1D99-2302
Opinion filed July 12, 2000.
An appeal from the Circuit Court for Escambia County, Kim A. Skievaski, Judge.
Nancy A. Daniels, Public Defender and Steven A. Been, Assistant Public Defender, Tallahassee, for Appellant.
Robert A. Butterworth, Attorney General and Karen M. Holland, Assistant Attorney General, Tallahassee, for Appellee.
Rosalyn Ann Sanders appeals her conviction for first degree murder, arguing that the evidence was insufficient as a matter of law to establish premeditation and that the trial court abused its discretion in refusing to grant a continuance of the trial to allow appellant the opportunity to retain different trial counsel. Appellant failed to preserve her insufficiency of the evidence issue, however, because she failed to file a motion for judgment of acquittal at trial raising this issue. See James v. State, 745 So.2d 1141, 1142-43 (Fla. 1st DCA 1999);Woods v. State, 733 So.2d 980, 984-85 (Fla. 1999). Further, we have held that the state's failure to prove all elements of a charged offense does not constitute "fundamental error" which may be raised for the first time on appeal. James, 745 So.2d at 1142-43. As to the fundamental error question, we certify conflict with T.E.J. v. State, 749 So.2d 557 (Fla. 2d DCA 2000); Stanton v. State, 746 So.2d 1229 (Fla. 3d DCA 1999); and Brown v. State, 652 So.2d 877 (Fla. 5th DCA 1995).
As to the continuance issue, we find no abuse of discretion in the trial court, after finding that defense counsel was prepared to go forward, refusing to grant a continuance. See Robinson v. State, 325 So.2d 427 (Fla. 1st DCA 1976).
Accordingly, we AFFIRM.
BOOTH, MINER AND VAN NORTWICK, JJ., CONCUR.