Bolen v. State
| Decision Date | 17 October 1979 |
| Docket Number | No. 77-2356,77-2356 |
| Citation | 375 So. 2d 891 |
| Parties | Edward J. BOLEN, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Richard L. Jorandby, Public Defender and Michael Dubiner, Asst. Public Defender, West Palm Beach, for appellant.
Jim Smith, Atty. Gen., Tallahassee and John D. Cecilian, Asst. Atty. Gen., West Palm Beach, for appellee.
We reject each of Bolen's arguments for reversal of his conviction for leaving the scene of an accident resulting in death, in violation of Section 316.027, Fla.Stat. (1977).
The defendant's first point complains of certain remarks made by the prosecutor in final argument to the jury. The record shows that when the statements in question were made, Bolen's counsel moved only for a mistrial, and did not either object or seek curative instructions. See Mancebo v. State, 350 So.2d 1098 (Fla. 3d DCA 1977), cert. denied, 359 So.2d 1217 (Fla.1978); Mabery v. State, 303 So. 369, 370 (Fla. 3d DCA 1974), cert. denied, 312 So.2d 756 (Fla.1975). While some of the comments complained of, particularly those which referred to the absence from the trial of the boy who was killed in the accident, were indeed improper, none were so objectionable as to deprive the defendant of a fair trial and thus to require the ultimate remedy of stopping the trial and beginning again. Hence, the trial judge may not be deemed to have erred or abused his discretion in failing to grant the sole relief requested below by denying the motions for mistrial. Abbott v. State, 334 So.2d 642, 647 (Fla. 3d DCA 1976), cert. denied, 345 So.2d 420 (Fla.1977); Davis v. State, 281 So.2d 551 (Fla. 3d DCA 1973), cert. denied, 289 So.2d 734 (Fla.1974).
Bolen's other point of substance claims error in the following portion of the charge to the jury concerning the crime involved:
The driver of an automobile need only be aware that he was involved in an accident and with such knowledge, willfully left the scene of the accident, without fulfilling the requirement of F.S. 316.062. The driver need not know that such accident resulted in the injury or death of any person. (Emphasis supplied).
In the context of this case, we need not and therefore do not decide whether we agree with the holding in State v. Moss, 206 So.2d 692 (Fla. 2d DCA 1968), which squarely supports this instruction. This is so because the only real question at the trial was whether, at the time of the accident, Bolen thought, as he testified, that his windshield had been struck by a rock which had been thrown at his car; or whether, as the state's witnesses stated ...
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Williams v. State
...to define excusable homicide, where evidence "did not bespeak a basic necessity requiring ... instruction"); see also, Bolen v. State, 375 So.2d 891 (Fla. 4th DCA 1979) (unnecessary to consider propriety of charge concerning essential element of crime; no more than harmless error involved b......
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Gonzalez v. State, 86-3120
...(Fla.1985); Palmer v. State, 486 So.2d 22 (Fla. 1st DCA 1986); Williams v. State, 443 So.2d 1053 (Fla. 1st DCA 1984); Bolen v. State, 375 So.2d 891 (Fla. 4th DCA 1979); Mabery v. State, 303 So.2d 369 (Fla. 3d DCA 1974), cert. denied, 312 So.2d 756 (Fla.1975). Since there was no request for ......
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Worthey v. State, 80-713
...to have been harmless. 5 Section 924.33, Florida Statutes (1979); James v. State, 393 So.2d 1138 (Fla. 3d DCA 1981); Bolen v. State, 375 So.2d 891 (Fla. 4th DCA 1979). 1 Compare Hodge v. State, 393 So.2d 1188 (Fla. 3d DCA 1981), in which the issue was properly preserved, and the defendant's......
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Dubois v. State
...3d DCA 1975); Brown v. State, 391 So.2d 729 (Fla. 3d DCA 1980); Williams v. State, 400 So.2d 542 (Fla. 3d DCA 1981); Bolen v. State, 375 So.2d 891 (Fla. 4th DCA 1979). ...