A defendant must preserve a claim of insufficient evidence through a timely objection in the trial court unless the evidence is totally insufficient to show a crime was committed.
A juvenile was adjudicated delinquent for petit theft, but the State failed to prove the value of the stolen items, and the defense did not object at trial. The question presented is whether the failure to prove an element of a crime constitutes fundamental error that can be raised for the first time on appeal. The court applies the rule that the contemporaneous objection requirement is the general standard for preserving claims of insufficient evidence, and that fundamental error is a narrow exception reserved for cases where the evidence is totally insufficient to show that a crime was committed at all. Because the State presented some evidence of the theft, the error was not fundamental, and the claim was not preserved for appellate review. The court affirms the lower court's decision.
At page 229 Reviewing contemporaneous objection and fundamental error requirements86 citing casesThe requirement of contemporaneous objection ... prevents counsel from allowing errors in the proceedings to go unchallenged and later using the error to a client’s tactical advantage.
- Dewarderick Morris v. State of Florida, 264 So. 3d 1036 (Fla. 2d DCA 2019).published However, an exception to this rule occurs "when there is insufficient evidence that a defendant committed any crime." -3- Monroe v. State, 191 So. 3d 395, 401 (Fla. 2016); see also F.B., 852 So. 2d at 230 ("The . . . exception to the requi…
- Darious Wilcox v. State of Florida, No. SC11-1017 (Fla. July 10, 2014).published (The requirement of contemporaneous objection . . . prevents counsel from allowing errors in the proceedings to go unchallenged and later using the error to a client’s tactical advantage.)
- Wilcox v. State, 143 So. 3d 359 (Fla. 2014).published (The requirement of contemporaneous objection ... prevents counsel from allowing errors in the proceedings to go unchallenged and later using the error to a client’s tactical advantage.)
- Wheeler v. State, 4 So. 3d 599 (Fla. 2009).published ([A]n error is deemed fundamental “when it goes to the foundation of the case or the merits of the cause of action and is equivalent to a denial of due process.’)
- Mora v. State, 964 So. 2d 881 (Fla. 3d DCA 2007).published(The sole exception to the contemporaneous objection rule applies where the error is fundamental.)
- Juan Ramon Nava v. State of Florida, No. 2022-1820 (Fla. 1st DCA Feb. 21, 2024).published“rarely will an error be deemed fundamental . . . .”
- Facundo v. State of Florida, No. 2D2025-1709 (Fla. 2d DCA May 22, 2026).publishedDiscarding the contemporaneous objection rule takes away the trial court's opportunity to address alleged errors and risks counsel "allowing errors in the proceedings to go unchallenged 3 and later using the error to a client's tactical ad…
- Cosme v. State of Florida, No. 2D2025-0001 (Fla. 2d DCA May 22, 2026).publishedSimilarly here, the egregious bolstering from multiple State's witnesses, including two law enforcement officers, went "to the foundation of the case . . . and [were] equivalent to a denial of due process." Id. at 814 (quoting F.B. v. Stat…
- State of Florida v. Walker, 425 So. 3d 686 (Fla. 2d DCA 2025).publishedThat doctrine is a function of appellate review that allows appellate courts to consider an unpreserved error on direct appeal where the error is so fundamental that it is tantamount to a denial of due process.3 See F.B. v. State, 852 So.…
- Anthony Alexander v. State of Florida, 417 So. 3d 368 (Fla. 4th DCA 2025).published Such an error “must reach 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.” F.B. v. State, 852 So. 2d 226, 229 (Fla. 2003) (quoting…
Show 74 more citing cases
- Ernest Lawson v. State of Florida, 416 So. 3d 327 (Fla. 4th DCA 2025).publishedTo be fundamental, the error “must reach 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.” F.B. v. State, 852 So. 2d 226, 229 (Fla.…
- J. M. v. State of Florida, 399 So. 3d 1286 (Fla. 2d DCA 2025).publishedF.B. v. State, 852 So. 2d 226, 229 (Fla. 2003).
- Trevis Presha v. State of Florida, 427 So. 3d 1047 (Fla. 3d DCA 2025).publishedF.B. v. State, 852 So. 2d 226, 229 (Fla. 2003).
- Robert Wayne Lincoln v. State of Florida, 398 So. 3d 1156 (Fla. 6th DCA 2024).published“The sole exception to the contemporaneous objection rule applies where the error is fundamental.” F.B. v. State, 852 So. 2d 226, 229 (Fla. 2003) (citing J.B., 705 So. 2d at 1378 ).
- City of Miami Beach v. Adalberto Cosme, 388 So. 3d 944 (Fla. 3d DCA 2024).publishedWhile it is true that “[i]n general, to raise a claimed error on appeal, a litigant must object at trial when the alleged error occurs[,]” F.B. v. State, 852 So. 2d 226, 229 (Fla. 2003), it is well-established that a due process violation,…
- Reynaldo Figueroa-Sanabria v. State of Florida, 366 So. 3d 1035 (Fla. 2023).publishedAgain, an error is harmless if “there is no reasonable possibility that the error contributed to the conviction.” DiGuilio, - 36 - 2010), as revised on denial of reh’g (Jan. 27, 2011), and if it is not, we review only for fundamental error…
- Javier Alonso-llamazares v. Int'l Dermatology Rsch., Inc., 339 So. 3d 385 (Fla. 3d DCA 2022).published(In general, to raise a claimed error on appeal, a litigant must object at trial when the alleged error occurs. ‘Furthermore, in order for an argument to be cognizable on appeal, it must be the specific contention asser…)
- Henry Martin Steiger v. State of Florida, 328 So. 3d 926 (Fla. 2021).publishedIn contrast to the showing of prejudice required by Strickland—i.e., “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different,” 466 U.S. at 694—establishing fundamental…
- Gustavo Enamorado Dubon v. State of Florida, 295 So. 3d 259 (Fla. 4th DCA 2020).publishedF.B. v. State, 852 So. 2d 226, 229 (Fla. 2003).
- Giardina v. Sec'y, Dep't of Corr., No. 8:15-cv-02703 (M.D. Fla. Oct. 16, 2019).F.B. v. State, 852 So. 2d 226, 229 (Fla. 2003).
- Isaiah Brooks v. State of Florida, 267 So. 3d 417 (Fla. 4th DCA 2019).publishedHere, even if the testimony constituted error, it did not “go[] to the foundation of the case or the merits of the cause of action . . . .” F.B. v. State, 852 So. 2d 226, 229 (Fla. 2003) (citation omitted).
- Timothy Richard Fox v. Pamela Sue Fox, 262 So. 3d 789 (Fla. 4th DCA 2018).published(The sole exception to the contemporaneous objection rule applies where the error is fundamental.” (citing J.B. v. State, 705 So. 2d 1376, 1378 (Fla. 1998)))
- Orando Ricardo Thompson v. State of Florida, 257 So. 3d 573 (Fla. 1st DCA 2018).publishedF.B. v. State, 852 So. 2d 226, 229 (Fla. 2003).
- M. P. v. State of Florida, No. 17-0871 (Fla. 2d DCA Sept. 21, 2018).publishedSee Duncan, 192 So. 3d at 655-56 (affirming $1300 restitution award for a smart TV based on testimony that the victim purchased it one or two years earlier for $1300, that it was in good condition at the time of the theft, and that the "vi…
- Will Twigg v. State of Florida, 254 So. 3d 464 (Fla. 4th DCA 2018).publishedF.B. v. State, 852 So. 2d 226, 229 (Fla. 2003). [I]n order to be of such fundamental nature as to justify a reversal in the absence of timely objection the error must reach down into the validity of the trial itself to the extent that a ve…
- Will Twigg v. State of Florida, No. 17-1694 (Fla. 4th DCA Aug. 1, 2018).publishedF.B. v. State, 852 So. 2d 226, 229 (Fla. 2003). [I]n order to be of such fundamental nature as to justify a reversal in the absence of timely objection the error must reach down into the validity of the trial itself to the extent that a ve…
- Robert Harold Bittle v. State of Florida, 245 So. 3d 792 (Fla. 4th DCA 2018).published F.B. v. State, 852 So. 2d 226, 229-30 (Fla. 2003).
- State of Florida v. Earvin Smith, 241 So. 3d 53 (Fla. 2018).publishedF.B. v. State, 852 So. 2d 226, 229-30 (Fla. 2003).
- Starks v. State, 223 So. 3d 1045 (Fla. 2d DCA 2017).published“A fundamental error -‘must reach down into the validity of thg trial itself to the extent that a verdict of^guilty could not have been obtained without the assistance of the alleged error.’ ” Monroe v. State, 191 So.3d 395, 401 (Fla. 2016…
- Ralph Monroe v. State of Florida, 191 So. 3d 395 (Fla. 2016).published I concurred in the Court’s unanimous opinion in F.B. v. State, 852 So. 2d 226, 229 (Fla. 2003), that “rarely will an error be deemed fundamental.” This is that rare case.
- Salvatore Bagnara v. State of Florida, 189 So. 3d 167 (Fla. 4th DCA 2016).published
- Gehring v. State, 937 So. 2d 169 (Fla. 2d DCA 2006).published
- Carratelli v. State, 961 So. 2d 312 (Fla. 2007).published
- State v. Pruitt, 977 So. 2d 604 (Fla. 2d DCA 2007).published
- B.L.S. v. State, 14 So. 3d 1087 (Fla. 5th DCA 2009).published
- Fleitas v. State, 3 So. 3d 351 (Fla. 3d DCA 2008).published
- Matheny v. State, 15 So. 3d 658 (Fla. 1st DCA 2009).published
- Odom v. State, 15 So. 3d 672 (Fla. 1st DCA 2009).published
- Sanchez v. State, 909 So. 2d 981 (Fla. 5th DCA 2005).published
- Montes v. State, 994 So. 2d 1210 (Fla. 5th DCA 2008).published
- Tp v. Dcfs, 935 So. 2d 621 (Fla. 3d DCA 2006).published
- Cox v. State, 966 So. 2d 337 (Fla. 2007).published
- Smiley v. State, 966 So. 2d 330 (Fla. 2007).published
- Overton v. State, 976 So. 2d 536 (Fla. 2007).published
- Stairs v. State, 973 So. 2d 1211 (Fla. 2d DCA 2008).published
- ER v. State, 973 So. 2d 579 (Fla. 1st DCA 2008).published
- Gore v. State, 964 So. 2d 1257 (Fla. 2007).published
- McCray v. State, 915 So. 2d 239 (Fla. 3d DCA 2005).published
- Sims v. State, 998 So. 2d 494 (Fla. 2008).published
- State v. Ertel, 886 So. 2d 423 (Fla. 2d DCA 2004).published
- Salazar v. State, 991 So. 2d 364 (Fla. 2008).published
- Insko v. State, 969 So. 2d 992 (Fla. 2007).published
- Jennings v. State, 920 So. 2d 32 (Fla. 2d DCA 2005).published
- Harrell v. State, 894 So. 2d 935 (Fla. 2005).published
- Deleon v. State, 66 So. 3d 391 (Fla. 2d DCA 2011).published
- Rigterink v. State, 66 So. 3d 866 (Fla. 2011).published
- McGirth v. State, 48 So. 3d 777 (Fla. 2010).published
- State v. Hampton, 44 So. 3d 661 (Fla. 2d DCA 2010).published
- Jaimes v. State, 51 So. 3d 445 (Fla. 2010).published
- Gonzalez v. State, 143 So. 3d 1171 (Fla. 3d DCA 2014).published
- Bill Paul Marquardt v. State of Florida, 156 So. 3d 464 (Fla. 2015).published
- Louidor v. State, 162 So. 3d 305 (Fla. 3d DCA 2015).published
- & SC14-1952 Jean Claude Noel v. State of Florida & Jean Claude Noel v. State of Florida, 191 So. 3d 370 (Fla. 2016).published
- Tavares David Calloway v. State of Florida, 210 So. 3d 1160 (Fla. 2017).published
- Joel Lebron v. State of Florida, No. SC13-442 (Fla. Dec. 21, 2017).published
- Roger N. Rosier v. State of Florida, 276 So. 3d 403 (Fla. 1st DCA 2019).published
- Kenneth Lee Manhard v. State of Florida, 282 So. 3d 941 (Fla. 1st DCA 2019).published
- S.K.W. v. State, 112 So. 3d 775 (Fla. 2d DCA 2013).published
- Garcia v. State, 114 So. 3d 424 (Fla. 2d DCA 2013).published
- Cliff Berry, Inc. v. State, 116 So. 3d 394 (Fla. 3d DCA 2012).published
- Datus v. State, 126 So. 3d 363 (Fla. 4th DCA 2013).published
- Kelly v. State, 13 So. 3d 127 (Fla. 1st DCA 2009).published
- Dep't of Revenue ex rel. Williams v. Annis, 159 So. 3d 263 (Fla. 2d DCA 2015).published
- Prater v. State, 161 So. 3d 489 (Fla. 5th DCA 2014).published
- Silvia v. State, 60 So. 3d 959 (Fla. 2011).published
- Rivera v. State, 73 So. 3d 333 (Fla. 5th DCA 2011).published
- Odeh v. State, 82 So. 3d 915 (Fla. 4th DCA 2011).published
- Gary Michael Hilton v. State of Florida & Gary Michael Hilton v. Mark S. Inch, etc., 326 So. 3d 640 (Fla. 2021).published
- Williams v. State, 892 So. 2d 1185 (Fla. 5th DCA 2005).published
- Olguin v. State, 903 So. 2d 270 (Fla. 3d DCA 2005).published
- Wooten v. State, 904 So. 2d 590 (Fla. 3d DCA 2005).published
- T.P. v. Dep't of Child. & Fam. Servs., 935 So. 2d 621 (Fla. 3d DCA 2006).published
- David Lai v. State of Florida, 397 So. 3d 208 (Fla. 6th DCA 2024).published
- Florida Homeowner Equity & Lost Prop., LLC v. Fairchild, 419 So. 3d 1153 (Fla. 2d DCA 2025).published
At page 230 Preserving claims of evidence insufficiency exceptions59 citing cases“the evidence is insufficient to show that a crime was committed at all.”
- Richard Carlton Johnston v. State of Florida, 357 So. 3d 156 (Fla. 4th DCA 2023).published(The second exception to the requirement that claims of insufficiency of the evidence must be preserved occurs when the evidence is insufficient to show that a crime was committed at all.)
- T.e.b. v. State of Florida, No. 20-2699 (Fla. 4th DCA May 4, 2022).published([A]n argument that the evidence is totally insufficient as a matter of law to establish the commission of a crime need not be preserved.)
- Donald James Smith v. State of Florida, 320 So. 3d 20 (Fla. 2021).published([A]n argument that the evidence is totally insufficient as a matter of law to establish the commission of a crime need not be preserved. Such complete failure of the evidence meets the requirements of fundamental error…)
- Dewarderick Morris v. State of Florida, 264 So. 3d 1036 (Fla. 2d DCA 2019).published (The . . . exception to the requirement that claims of insufficiency of the evidence must be preserved occurs when the evidence is insufficient to show that a crime was committed at all.)
- Taylor M. Edwards v. State, 254 So. 3d 1195 (Fla. 5th DCA 2018).published([A]n argument that the evidence is totally insufficient as a matter of law to establish the commission of a crime need not be preserved. Such complete failure of the evidence meets the requirements of fundamental error…)
- Castillo v. State, 217 So. 3d 1110 (Fla. 3d DCA 2017).published ([W]e hold that, with two exceptions, a defendant must preserve a claim of insufficiency of the evidence through timely challenge in the trial court.)
- Elliott, No. 8:23-cv-00636 (M.D. Fla. Oct. 14, 2025).([A] motion or objection must be specific to preserve a claim of insufficiency of the evidence for appellate review.)
- Patrick Anthony Ribbing v. State of Florida, 419 So. 3d 1248 (Fla. 1st DCA 2025).publishedBut because Appellant failed to move for judgment of acquittal at trial, he must show on appeal that “the evidence is insufficient to show that a crime was committed at all.” F.B. v. State, 852 So. 2d 226, 230 (Fla. 2003).
- Adam Cole Crenshaw v. State of Florida, 420 So. 3d 1107 (Fla. 5th DCA 2025).publishedFor a conviction to constitute fundamental error, there must be a complete lack of evidence “that a crime was committed at all.” F.B. v. State, 852 So. 2d 226, 230 (Fla. 2003).
- Christopher Allen Pryor v. State of Florida, 419 So. 3d 608 (Fla. 2025).published We held in F.B. that, “with two exceptions, a defendant must preserve a claim of insufficiency of the evidence through timely challenge in the trial court.” Id. at 230.
Show 48 more citing cases
- Charles Alford v. State of Florida, 413 So. 3d 132 (Fla. 4th DCA 2025).publishedF.B. v. State, 852 So. 2d 226, 230 (Fla. 2003).
- Byron Turner v. State of Florida, 402 So. 3d 1162 (Fla. 3d DCA 2025).publishedSuch complete failure of the evidence meets the requirements of fundamental error-i.e., an error that reaches to the foundation of the case and is equal to a denial of due process.”) (quoting F.B. v. State, 852 So. 2d 226, 230-31 (Fla. 200…
- Mark Harris v. State of Florida, 403 So. 3d 354 (Fla. 3d DCA 2025).publishedII. “[A]n argument that the evidence is totally insufficient as a matter of law to establish the commission of a crime need not be preserved.” F.B. v. State, 852 So. 2d 226, 230 (Fla. 2003).
- Kiante Ahmad Jackson v. State of Florida, 289 So. 3d 967 (Fla. 4th DCA 2020).published(fundamental error based on a failure of proof can occur only when “the evidence is insufficient to show that a crime was committed at all,” and)
- Waymon Kirkland v. State of Florida, 225 So. 3d 920 (Fla. 1st DCA 2017).published(holding that a defendant can present an unpre-served claim of insufficiency on appeal in a noncapital case only when the evidence is “insufficient to show that a crime was committed at all)
- Johnnie C. George v. State, 208 So. 3d 838 (Fla. 5th DCA 2017).published F.B. v. State, 852 So.2d 226, 230 (Fla. 2003) (citing Tibbs v. State, 397 So.2d 1120, 1123 (Fla. 1981)). 2 .
- Matheny v. State, 15 So. 3d 658 (Fla. 1st DCA 2009).published
- Montes v. State, 994 So. 2d 1210 (Fla. 5th DCA 2008).published
- Insko v. State, 969 So. 2d 992 (Fla. 2007).published
- Roger N. Rosier v. State of Florida, 276 So. 3d 403 (Fla. 1st DCA 2019).published
- Prater v. State, 161 So. 3d 489 (Fla. 5th DCA 2014).published
- Goad v. State, 887 So. 2d 415 (Fla. 2d DCA 2004).published
- Ashley v. State, 925 So. 2d 1117 (Fla. 5th DCA 2006).published
- Frederick v. State, 931 So. 2d 967 (Fla. 3d DCA 2006).published
- Andre v. State, 13 So. 3d 103 (Fla. 4th DCA 2009).published
- Morton v. State, 995 So. 2d 233 (Fla. 2008).published
- CEL v. State, 995 So. 2d 558 (Fla. 2d DCA 2008).published
- Tribbitt v. State, 984 So. 2d 624 (Fla. 2d DCA 2008).published
- Rodriguez v. State, 964 So. 2d 833 (Fla. 2d DCA 2007).published
- Kirschner v. State, 915 So. 2d 624 (Fla. 2d DCA 2005).published
- Alvarez v. State, 963 So. 2d 757 (Fla. 3d DCA 2007).published
- Sanders v. State, 905 So. 2d 271 (Fla. 2d DCA 2005).published
- Watson v. State, 974 So. 2d 1168 (Fla. 4th DCA 2008).published
- De La Hoz v. State, 997 So. 2d 1198 (Fla. 3d DCA 2008).published
- Inquiry Concerning a Judge re Diaz, 908 So. 2d 334 (Fla. 2005).published
- Crain v. State, 79 So. 3d 118 (Fla. 1st DCA 2012).published
- Pryor v. State, 48 So. 3d 159 (Fla. 1st DCA 2010).published
- Antonio Morales v. State of Florida, 170 So. 3d 63 (Fla. 1st DCA 2015).published
- J.b. v. State of Florida, 304 So. 3d 352 (Fla. 4th DCA 2020).published
- C.D. v. State, 100 So. 3d 290 (Fla. 3d DCA 2012).published
- Pamblanco v. State, 111 So. 3d 249 (Fla. 5th DCA 2013).published
- Sangster v. State, 112 So. 3d 143 (Fla. 1st DCA 2013).published
- Palmer v. State, 124 So. 3d 1043 (Fla. 3d DCA 2013).published
- Ridgeway v. State, 128 So. 3d 935 (Fla. 1st DCA 2013).published
- Hampton v. State, 135 So. 3d 440 (Fla. 5th DCA 2014).published
- Tate v. State, 136 So. 3d 624 (Fla. 2d DCA 2013).published
- Young v. State, 141 So. 3d 161 (Fla. 2013).published
- Spencer v. State, 216 So. 3d 11 (Fla. 1st DCA 2015).published
- Baines v. State, 25 So. 3d 1277 (Fla. 4th DCA 2010).published
- Colbert v. State, 49 So. 3d 819 (Fla. 4th DCA 2010).published
- B.C. v. State, 70 So. 3d 666 (Fla. 1st DCA 2011).published
- Hamilton v. State, 71 So. 3d 247 (Fla. 4th DCA 2011).published
- Lawshea v. State, 99 So. 3d 603 (Fla. 2d DCA 2012).published
- Johnny Ray Graham v. State of Florida, 338 So. 3d 1 (Fla. 4th DCA 2022).published
- Howard v. State, 866 So. 2d 1265 (Fla. 4th DCA 2004).published
- Jean v. State, 877 So. 2d 910 (Fla. 4th DCA 2004).published
- Stinnett v. State, 935 So. 2d 632 (Fla. 2d DCA 2006).published
- Hampton v. State, 103 So. 3d 98 (Fla. 2012).published
At page 227 Reviewing issues for fundamental error on appeal6 citing casesCarey Haughwout, Public Defender, and Marcy K. Allen, Assistant Public Defender, Fifteenth Judicial Circuit, West Palm Beach, Florida, for Petitioner. Charles…
- Christopher Allen Pryor v. State of Florida, 419 So. 3d 608 (Fla. 2025).published We held in F.B. that, “with two exceptions, a defendant must preserve a claim of insufficiency of the evidence through timely challenge in the trial court.” Id. at 230.
- Gerard Thevinh Bui v. Tatianan Patricia Padilla Panzardi, 416 So. 3d 1158 (Fla. 4th DCA 2025).publishedAccordingly, we review this issue for fundamental error. 1 Dennis v. State, 980 So. 2d 1279, 1280 (Fla. 4th DCA 2008) (“[I]ssues involving fundamental error may be raised for the first time on appeal.” (citing F.B. v. State, 852 So. 2d 226…
- Jackson v. State, 880 So. 2d 1241 (Fla. 1st DCA 2004).published
- Dennis v. State, 980 So. 2d 1279 (Fla. 4th DCA 2008).published
- Salvatore Bagnara v. State of Florida, 189 So. 3d 167 (Fla. 4th DCA 2016).published
- C. T. T. v. State of Florida, 249 So. 3d 1320 (Fla. 1st DCA 2018).published
At page 228 Preserving issues for appellate review of evidence sufficiency6 citing cases“does not intentionally overrule itself sub silentio,”
- Talbot, LLC v. City of Tampa, No. 2D2025-1729 (Fla. 2d DCA Sept. 25, 2026).publishedStevens v. State, 226 So. 3d 787, 792 (Fla. 2017); F.B. v. State, 852 So. 2d 226, 228-29 (Fla. 2003); Puryear v. State, 810 So. 2d 901, 905 (Fla. 2002).
- State of Florida v. Andrew Scott Crose, 378 So. 3d 1217 (Fla. 2d DCA 2024).publishedWhile we recognize that the Florida Supreme Court "does not intentionally overrule itself sub silentio," F.B. v. State, 852 So. 2d 226, 228 (Fla. 2003) (quoting Puryear v. State, 810 So. 2d 901, 905 (Fla. 2002)), when the court fundamental…
- Theresa Graham v. R.J Reynolds Tobacco Co., 857 F.3d 1169 (11th Cir. 2017).published Our assumption was reasonable: ‘‘[T]his Court does not intentionally overrule itself sub silentio.” F.B. v. State, 852 So.2d 226, 228 (Fla. 2003) (quoting Puryear v. State, 810 So.2d 901, 905 (Fla. 2002)). ."The Florida First District Cour…
- Morgan Stanley & Co. v. Coleman Holdings, 955 So. 2d 1124 (Fla. 4th DCA 2007).published
- Adamides v. City of Miami, 885 So. 2d 955 (Fla. 1st DCA 2004).published
- Dominguez v. State of Florida, 429 So. 3d 636 (Fla. 2d DCA 2026).published
At page 280 Reversal standards for failure to preserve issue3 citing cases
- Hampton v. State, 135 So. 3d 440 (Fla. 5th DCA 2014).published
- Monroe v. State, 148 So. 3d 850 (Fla. 1st DCA 2014).published
- Sheffield v. State, 927 So. 2d 1076 (Fla. 2d DCA 2006).published
At page 231 “a motion or objection must be specific to preserve a claim of insufficiency of the evidence for appellate review.”1 citing case
- Elliott, No. 8:23-cv-00636 (M.D. Fla. Oct. 14, 2025).“a motion or objection must be specific to preserve a claim of insufficiency of the evidence for appellate review.”
Other citing cases
- Bennett's Leasing, Inc. v. First Street Mortg. Corp., 870 So. 2d 93 (Fla. 1st DCA 2003).published
v.
STATE of Florida, Respondent.
[*227] Carey Haughwout, Public Defender, and Marcy K. Allen, Assistant Public Defender, Fifteenth Judicial Circuit, West Palm Beach, Florida, for Petitioner.
Charles J. Crist, Jr., Attorney General, Celia Terenzio, Bureau Chief, and Maria J. Patullo, Assistant Attorney General, West Palm Beach, Florida, for Respondent.
CANTERO, J.
We review F.B. v. State, 816 So.2d 699 (Fla. 4th DCA 2002), which certified conflict with T.E.J. v. State, 749 So.2d 557 (Fla. 2d DCA 2000). We have jurisdiction. See art. V, § 3(b)(4), Fla. Const. As explained below, we approve the Fourth District Court of Appeal's holding that the insufficiency of the evidence to prove one element of a crime does not constitute fundamental error, and therefore this claim must first be raised in the trial court to be preserved for appellate review.
I. The Decisions in Conflict
The operative facts of the two cases are essentially the same. In F.B., the petitioner was adjudicated delinquent on the charge of petit theft of items valued at $100 or more but less than $300, a firstdegree misdemeanor. 816 So.2d at 700; see § 812.014(1)(a), (2)(e), Fla. Stat. (1999) (declaring the theft of items valued at $100 but less than $300 to be a first-degree misdemeanor). Although the State presented evidence about the items taken, it offered no evidence of their value. Petitioner failed to object, however, or to move for judgment of acquittal on this ground. Petitioner raised the claim for the first time on appeal, asserting fundamental error. The Fourth District held that under[*228] State v. Barber, 301 So.2d 7 (Fla.1974), the issue must be preserved for appeal. 816 So.2d at 701; accord Joseph v. State, 830 So.2d 911, 911 (Fla. 4th DCA 2002) (citing F.B. and affirming burglary of occupied dwelling conviction because insufficient evidence claim was not preserved). Similarly, in the conflict case, T.E.J. argued for the first time on appeal that a delinquency adjudication for first-degree petit theft must be reduced to second-degree because the State failed to prove the value of the stolen items. 749 So.2d at 558. Without mentioning Barber, the Second District Court of Appeal, relying on our decision in Negron v. State, 306 So.2d 104, 107 (Fla.1974), receded from on other grounds by Butterworth v. Fluellen, 389 So.2d 968 (Fla.1980), concluded that the "failure of proof on the essential element of value was fundamental error" and reversed. 749 So.2d at 558; accord E.R. v. State, 806 So.2d 529 (Fla. 2d DCA 2001) (reversing third-degree grand theft conviction as fundamental error, relying on T.E.J., because the State failed to prove that the value of the property exceeded $300 and ordering the conviction reduced to second-degree petit theft).[1]
II. Barber and Negron
The courts in F.B. and T.E.J. relied on two different cases from this Court for their opposite holdings. In State v. Barber, 301 So.2d 7, 8 (Fla.1974), the respondents were convicted of two counts of breaking and entering with intent to commit grand larceny. As did the petitioner here, on appeal they alleged that the evidence was insufficient to sustain the conviction on the element of the value of the property stolen. The respondents contended that the State thus failed to present a prima facie case and that this constituted fundamental error. Citing a line of prior decisions, we rejected that argument and held that "unless the issue of sufficiency of the evidence to sustain a verdict in a criminal case is first presented to the trial court by way of an appropriate motion, the issue is not reviewable on direct appeal from an adverse judgment." Id. at 9. Because the issue was not preserved below, we held that it "was not open to appellate review." Id.
Three months after Barber, we decided Negron v. State, 306 So.2d 104 (Fla.1974), on which the Second District relied in T.E.J. After resolving the conflict issue presented, this Court turned to the petitioners' contention "that there was fundamental error committed as to them in that they were convicted of grand larceny when the State's evidence did not support a conviction of grand larceny." 306 So.2d at 107. Again, the petitioners claimed that the State failed to present sufficient evidence of the value of the items stolen. Without referring to Barber, we reviewed the record and held that the evidence was insufficient to support a grand theft conviction. Id. at 108. We reversed for entry of a petty larceny conviction. Id. at 109.
Although Negron tacitly rests on the assumption that the petitioners' insufficient evidence claim constituted fundamental error, the Court did not address that issue. Thus, while the Second District's reliance on Negron is understandable, we again remind the courts that
this Court does not intentionally overrule itself sub silentio. Where a court encounters an express holding from this Court on a specific issue and a subsequent contrary dicta statement on the same specific issue, the court is to apply[*229] our express holding in the former decision until such time as this Court recedes from the express holding.
Puryear v. State, 810 So.2d 901, 905 (Fla. 2002) (emphasis added). As explained below, we reaffirm Barber, which did expressly rule on the issue, and recede from Negron to the extent it conflicts with Barber.
III. Preservation and Fundamental Error
We first review the principles underlying the requirement to preserve error for review and the requisites for determining fundamental error, which may be raised for the first time on appeal. In general, to raise a claimed error on appeal, a litigant must object at trial when the alleged error occurs. J.B. v. State, 705 So.2d 1376, 1378 (Fla.1998). "Furthermore, in order for an argument to be cognizable on appeal, it must be the specific contention asserted as legal ground for the objection, exception, or motion below." Steinhorst v. State, 412 So.2d 332, 338 (Fla.1982). This Court has explained that
[t]he requirement of a contemporaneous objection is based on practical necessity and basic fairness in the operation of a judicial system. It places the trial judge on notice that error may have been committed, and provides him an opportunity to correct it at an early stage of the proceedings. Delay and an unnecessary use of the appellate process result from a failure to cure early that which must be cured eventually.
Castor v. State, 365 So.2d 701, 703 (Fla. 1978). The requirement of contemporaneous objection thus not only affords trial judges the opportunity to address and possibly redress a claimed error, it also prevents counsel from allowing errors in the proceedings to go unchallenged and later using the error to a client's tactical advantage. See J.B., 705 So.2d at 1378.
The sole exception to the contemporaneous objection rule applies where the error is fundamental. Id. We have stated that "in order to be of such fundamental nature as to justify a reversal in the absence of timely objection the error must reach 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." Brown v. State, 124 So.2d 481, 484 (Fla. 1960) (holding that the alleged error "did not permeate or saturate the trial with such basic invalidity as to lead to a reversal regardless of a timely objection"). Thus, an error is deemed fundamental "when it goes to the foundation of the case or the merits of the cause of action and is equivalent to a denial of due process." J.B., 705 So.2d at 1378; see also State v. Johnson, 616 So.2d 1, 3 (Fla.1993) (stating that "for an error to be so fundamental that it can be raised for the first time on appeal, the error must be basic to the judicial decision under review and equivalent to a denial of due process"). "The doctrine of fundamental error should be applied only in rare cases where a jurisdictional error appears or where the interests of justice present a compelling demand for its application." Smith v. State, 521 So.2d 106, 108 (Fla.1988); see also Hopkins v. State, 632 So.2d 1372, 1374 (Fla.1994) (noting that "this Court has cautioned that the fundamental error doctrine should be used `very guardedly'").
IV. Insufficiency of the Evidence and Fundamental Error
As the foregoing discussion suggests, rarely will an error be deemed fundamental, and the more general rule requiring a contemporaneous objection to preserve an issue for appellate review will[*230] usually apply. We find that the interests of justice are better served by applying this general rule to challenges to the sufficiency of the evidence. Any technical deficiency in proof may be readily addressed by timely objection or motion, thus allowing the State to correct the error, if indeed it is correctable, before the trial concludes. See Johnson v. State, 478 So.2d 885, 886 (Fla. 3d DCA 1985) (noting that "[h]ad counsel complied with the rule and specifically brought the ground now urged to the trial court's attention, the error, if any, might have been cured by allowing the state to re-open its case and supply the missing, technical element of age").
The deferential standard of review appellate courts apply to claims of insufficiency of the evidence—i.e., "whether, after all conflicts in the evidence and all reasonable inferences therefrom have been resolved in favor of the verdict on appeal, there is substantial, competent evidence to support the verdict and judgment"—further supports our holding. See Tibbs v. State, 397 So.2d 1120, 1123 (Fla.1981) (clarifying the difference between sufficiency and weight of the evidence and defining the appellate court's task in reviewing a claim of insufficiency of the evidence). In light of this standard of review and the interests the contemporaneous objection rule serves, we hold that, with two exceptions, a defendant must preserve a claim of insufficiency of the evidence through timely challenge in the trial court.[2]
The first exception is based on the longstanding appellate rule under which, in death penalty cases, this Court is required to review the sufficiency of the evidence to support the conviction. See Fla. R.App. P. 9.140(i). This Court always reviews such cases to determine whether competent, substantial evidence supports the verdict, regardless of whether the issue is preserved for review or even raised on appeal. See, e.g., Brooks v. State, 762 So.2d 879 (Fla.2000); Woods v. State, 733 So.2d 980 (Fla.1999); Archer v. State, 613 So.2d 446 (Fla.1993).
The second exception to the requirement that claims of insufficiency of the evidence must be preserved occurs when the evidence is insufficient to show that a crime was committed at all. This exception is illustrated in two cases. In Troedel v. State, 462 So.2d 392, 399 (Fla.1984), we reversed one of the defendant's two burglary convictions because "[t]here was no evidence of more than one such unlawful entry." We held that "a conviction imposed upon a crime totally unsupported by evidence constitutes fundamental error." Id. We applied this rule in Vance v. State, 472 So.2d 734 (Fla.1985), in which the petitioner was charged with two counts of aggravated assault with a deadly weapon and was convicted on each of the lesserincluded offense of improper exhibition of a dangerous weapon under section 790.10, Florida Statutes (1981), which prohibits such exhibition "in the presence of one or more persons." Relying on Troedel's fundamental error pronouncement, we held that because section 790.10 was only violated once in the single episode, the second conviction was "totally unsupported by evidence." 472 So.2d at 735.
Thus, an argument that the evidence is totally insufficient as a matter of law to establish the commission of a crime need not be preserved. Such complete failure of the evidence meets the requirements of fundamental error—i.e., an error[*231] that reaches to the foundation of the case and is equal to a denial of due process. See, e.g., Stanton v. State, 746 So.2d 1229, 1230 (Fla. 3d DCA 1999) (citing Troedel and stating that "a person who takes temporary possession of contraband for the sole purpose of turning it into the authorities, and promptly does so, is [not] guilty of a crime"); Griffin v. State, 705 So.2d 572, 574 (Fla. 4th DCA 1998) (reversing conviction because a "conviction is fundamentally erroneous when the facts affirmatively proven by the State simply do not constitute the charged offense as a matter of law"); Harris v. State, 647 So.2d 206, 208 (Fla. 1st DCA 1994) (reversing conviction and stating that "[c]onviction of a crime which did not take place is a fundamental error, which the appellate court should correct even when no timely objection or motion for acquittal was made below"); Nelson v. State, 543 So.2d 1308, 1309 (Fla. 2d DCA 1989) (reversing conviction as fundamental error because defendant's conduct did not constitute the crime of which he was convicted).
V. Conclusion
In conclusion, we reaffirm, with the two discrete exceptions explicated above, the longstanding rule that claims of insufficiency of the evidence must be specifically preserved for appellate review. Accordingly, we approve the Fourth DCA's decision in F.B. and disapprove the decision in T.E.J.
It is so ordered.
ANSTEAD, C.J., and WELLS, PARIENTE, LEWIS, QUINCE, and BELL, JJ., concur.