Hamilton v. State, 36 Fla. L. Weekly D2242 (Fla. 4th DCA, Oct 12, 2011 – Columbus Day): Defendant appealed, Reversed and Remanded – Defendant was found guilty of robbery with a weapon despite the fact that the state’s evidence was that the weapon was a toy gun. The appellate court was compelled to reverse even though this issue was not raised before the trial court. Citing F.B. v. State, 852 So.2d 226 (Fla. 2003), this court pointed out that “an argument that the evidence is totally insufficient as a matter of law to establish the commission of a crime . . . meets the requirement of fundamental error.” Fundamental error is “an error that reaches to the foundation of the case and is equal to a denial of due process.” Id. at 230-231.
Fundamental error can be (and should be) but need not be raised at the trial court level.
Often, when an issue is not preserved (no record is made and/or the objection was not raised in the trial court) the avenue taken by the appellant is to argue on appeal that the issue is fundamental to due process. This is an extremely high hurdle to jump over. The way for a party to better their odds on appeal is to raise the issue by objection or motion at the trial court level AND have the court rule. The error standard on appeal is no longer “fundamental” but instead turns into “reversible” or “harmless” error standard.
See State v. DiGuilio, 491 So.2d 1129 (Fla. 1986) for insight into the harmless error standard.
I’m no expert on appellate law so if you have knowledge to pass on please comment below. Thanks.