PENA v. STATE, 732 So.2d 1091 (Fla.App. 4 Dist. 1998)

GLENN PENA, Appellant, v. STATE OF FLORIDA, Appellee.

No. 97-4137District Court of Appeal of Florida, Fourth District.
Opinion filed December 9, 1998. Order Granting Rehearing February 10, 1999

Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County; Marvin U. Mounts, Jr., Judge; L.T. No. 96-04670 CF A02 S.

Richard L. Jorandby, Public Defender, and David McPherrin, Assistant Public Defender, West Palm Beach, for appellant.

Robert A. Butterworth, Attorney General, Tallahassee, and Rochelle L. Kirdy, Assistant Attorney General, West Palm Beach, for appellee.

PER CURIAM.

In response to a jury question posed during deliberations, the trial court provided a partial set of written instructions to the jury. Fla. R. Crim. P. 3.400(a) provides that upon deliberation in non-capital cases, the court may permit the jury to take any instructions given to the jury room; however, “if any instructions is [sic] taken all the instructions must be taken.” Fla. R. Crim P. 3.400(a)(3)c. We decline to consider this issue because Appellant did not object below and, therefore, failed to preserve this point for review on appeal. See Archibald v. State, 715 So.2d 1154 (Fla. 4th DCA 1998). Further, failure to provide the full set of instructions was not fundamental error. See State v. Delva, 575 So.2d 643 (Fla. 1991).

Page 1092

We also affirm as to Appellant’s second issue, that he was improperly convicted of two counts of resisting arrest with violence where he struggled with and assaulted two police officers in resisting arrest. See Wallace v. State, 689 So.2d 1159 (Fla. 4th DCA), rev. granted, 699 So.2d 1377 (Fla. 1997). As i Wallace, we certify conflict with Pierce v. State, 681 So.2d 873
(Fla. 1st DCA 1996).

STONE, C.J., KLEIN, J., and OWEN, WILLIAM C., JR., Senior Judge, concur.