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The Louisiana Supreme Court reversed a despite the lack of objection to the jury charges, because the jury was improperly charged with the wrong definition of the charged crime.

2d Cir.2/28/01), , writ denied, XXXX-XXXX (La.2/22/02)

The court acknowledged that there are exceptions to the rule, (La.

fundamentally erroneous misstatements of the essential elements of the charged offense were found to require reversal, despite the defendant's failure to raise an objection in the trial court.

Defendant contends, however, (La.

2 This court’s review of the relative jurisprudence was as follows: Despite the general rale, the Supreme Court reviewed an erroneous jury instruction even though the defendant failed to object at trial.

Further, the court found the facts were distinguishable from cases in which harmless error was not found, State v. Pyke, 93-1506 (La.App.

State v. Johnson, 98-1407, p. 10 (La.App.

the Louisiana Supreme Court found that a substantial probability that jurors may have convicted the defendant *802 under an incorrect definition of the crime justifies setting aside a conviction on due process grounds even in the absence of a contemporaneous objection.

State v. Hubbard, 97-916 (La.

Although Louisiana courts have sometimes waived the contemporaneous objection rule, (an error involving "the very definition of the crime of which defendant was in fact convicted ...

Nevertheless, defendant argues that the jury charge should be reviewed absent a

Despite the general rule, the Supreme Court reviewed an erroneous jury instruction even though the defendant failed to object at trial.

State v. Page, supra ; State v. Price, supra .

[3] Although this case is before us via post-conviction proceedings because of trial counsel's failure to object, we note that because we find that the instant error is not structural, it necessarily is not of such significance as to violate fundamental requirements of due process, and thus a defendant must make a contemporaneous objection in order to preserve the error for direct review.

Although this rule is not absolute, -48 (La.1987), our review of the jurisprudence establishes that exceptions have been made only when a structural or fundamental error has occurred, (erroneous jury instructions).

However, the Louisiana Supreme Court reviewed the defendant’s assignment of error concerning improper jury instructions, despite his failure to object to the instructions at trial.

State v. Jynes, 652 So.2d at 95 -96 n. 2.

at 98 ; ("a substantial probability that jurors may have convicted the defendant under an incorrect definition of the crime justifies setting aside a conviction on due process grounds even in absence of a contemporaneous objection").

found that an erroneous jury instruction was reviewable, stating: ...

defendant was charged with attempted first degree murder but convicted of *632 attempted second degree murder.

The Louisiana Supreme Court again recognized that, (La.

The court also took note of the exception to this rule

State v. Cavazos, 610 So.2d at 128 [].

The panel in Dobson noted: The Supreme Court has consistently rejected the `plain error' rule; where the court considered that the omission of an instruction that the defendant's prior theft conviction could be considered only for the purpose of sentence enhancem

Even if this court concludes that no contemporaneous objection was made, the defendant argues that the Louisiana Supreme Court has recognized exceptions to the contemporaneous objection rule where the jury instruction contained misstatements of the elements of an offense

3339 , 92 L.Ed.2d 743 (1986), and also where the error emanated from a recent legislative change in the law

as examples when contemporaneous objections are unnecessary.

1982); where the court considered that the omission of an instruction that the defendant's prior theft conviction could be considered only for the purpose of sentence enhancem

The Supreme Court has consistently rejected the ‘plain error’ rule; where the court considered that the omission of an instruction that the defendant’s prior theft conviction could be considered only for the purpose of sentence enhancem

The Supreme Court has consistently rejected the "plain error" rule; where the court considered that the omission of an instruction that the defendant's prior theft conviction could be considered only for the purpose of sentence enhancem

erroneous instructions with respect to the elements of the offense which were not objected to were said to be "of such importance and significance as to violate fundamental requirements of due process."

For example, the supreme court refused to apply the contemporaneous objection rule where the trial judge erroneously instructed the jury on the essential elements of the charged crime [ ] and where the trial judge failed to give a constitutionally fundamental jury instruction [ ].