365 So.2d 405 (Fla.App. 3 Dist. 1978), 77-1414, Smith v. State

• Date: 05 December 1978
• Docket Number: 77-1414.
• Citation: 365 So.2d 405
• Parties: Al P. SMITH, Appellant, v. The STATE of Florida, Appellee.
• Court: Florida Court of Appeals. Third District

Page 405

365 So.2d 405 (Fla.App. 3 Dist. 1978)

Al P. SMITH, Appellant,

v.

The STATE of Florida, Appellee.

No. 77-1414.

Florida Court of Appeals, Third District.

December 5, 1978

Rehearing Denied Jan. 10, 1979.

Page 406

Bennett H. Brummer, Public Defender, and Elliot H. Scherker, Asst. Public Defender, for appellant.

Robert L. Shevin, Atty. Gen., and Steven L. Bolotin, Asst. Atty. Gen., for appellee.

Before PEARSON, HENDRY and KEHOE ^[*] , JJ.

PER CURIAM.

The defendant, Al Prospery Smith, appeals a judgment of the court holding him guilty of the crimes of unlawful and felonious breaking and entering a dwelling with intent to commit a felony therein, to wit: involuntary sexual battery; and committing sexual battery without consent by coercing the victim to submit by threatening the use of force or violence likely to cause serious personal injury (no deadly weapon involved). The court entered a sentence of ten years on count 1 and a consecutive forty year sentence on count 2. ¹

Page 407

The defendant has presented four points on appeal. The first urges that the trial court erred in denying a motion for mistrial upon the grounds that prejudicial testimony of defendant's prior incarceration was admitted into evidence. The second urges error in denying a mistrial claimed for improper closing argument of the prosecutor. The third urges that the defendant was convicted of an offense for which he was not charged in that the claimed lesser-included offense for which he was convicted is not a lesser-included offense of the crime charged. The fourth urges error in the sentence in that the maximum term authorized for the offense of sexual battery with the use of threats or force under Section 794.011(4)(b), Florida Statutes (1975), is thirty years. The State has confessed error on this last point.

Points one and two claiming error upon the failure to declare a mistrial would, if error appeared, require the reversal of the judgment and sentence on both the breaking and entering count and the sexual battery count. In each of the cases where error is claimed, we have reviewed the record to determine whether prejudicial error appears. It is clear that a mistrial should be declared in the midst of a criminal trial only where there is an absolute legal necessity to stop the trial because of prejudice to the defendant. See Flowers v. State, 351 So.2d 764 (Fla. 3d DCA 1977), and cases cited therein.

Under his first point, the defendant claims the prejudice to have been the admission of commissary slips showing his signature which could have been made only in jail. He, thereupon, argues that he was so prejudiced that he could not have received a fair trial. The admission of the commissary slips was made proper by the defendant having claimed that the initials on a waiver of rights form were not his. If there was any prejudice to the defendant, we think that it could have been corrected by an instruction to the jury to disregard the testimony or to consider it only in the context of the handwriting comparison. The defendant did not request such a procedure. We think that a mistrial would have been inappropriate. See Comer v. State,318 So.2d 419 (Fla. 3d DCA 1975); and Richardson v. State, 248 So.2d 530 (Fla. 3d DCA 1971).

The second...