Cagnina v. State
| Decision Date | 01 June 1965 |
| Docket Number | No. 64-797,64-797 |
| Citation | 175 So.2d 577 |
| Parties | Sam CAGNINA, also known as Sammy Cagnina, Appellant, v. The STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Richard G. Taylor, Miami, for appellant.
Earl Faircloth, Atty. Gen., and James T. Carlisle, Asst. Atty. Gen., for appellee.
Before CARROLL, HENDRY and SWANN, JJ.
The appellant, Sam Cagnina, was charged, by an information filed in Monroe County, Florida, with robbery by force and violence. A trial of the cause resulted in the acquittal of a co-defendant, Ishmael Garcia, and the conviction of the appellant. Cagnina on appeal contends the trial court erred on three separate points.
Appellant's third assignment of error was that the trial court erred in failing to allow his counsel the right to closing argument to the jury, inasmuch as he had offered no testimony in his own behalf. The State contends that the co-defendant, Ishmael Garcia, testified in behalf of himself, but that his testimony was primarily an alibi for appellant, and that Garcia called other witnesses whose testimony was beneficial only to appellant. Appellant contends that Garcia and his witnesses were called only by counsel for Garcia and not in appellant's behalf. We agree with this contention and therefore find it unnecessary to discuss the other charges of error.
Section 918.09 Florida Statutes, F.S.A., gives a defendant who offers no testimony in his own behalf the right to the concluding argument before the jury. The courts of this state have consistently held that this is an important procedural right and that it is prejudicial, and reversible error to deprive the defendant in a criminal case of this right. Gordon v. State, Fla.1958, 104 So.2d 524; Faulk v. State, Fla.1958, 104 So.2d 519; Meade v. State, Fla.1956, 85 So.2d 613, 59 A.L.R.2d 835; Smith v. State, 1954, 155 Fla. 148, 19 So.2d 698; Cameron v. State, Fla.App.1959, 112 So.2d 864.
The State relies upon Carter v. State, Fla.App.1958, 101 So.2d 911, in which trial counsel for one of the defendant's who also represented each of the other defendants, called a witness for the defendant, Carter. This witness' testimony was equally beneficial to each of the defendants and tended to show that none of them were guilty of the crime charged. The court there held that when testimony was given by a witness called by common counsel on behalf of one of several defendants, and the testimony was beneficial to all of the defendants, none of the defendants would be entitled to closing argument.
In the instant case, Cagnina and Garcia were represented by separate counsel. Appellant's counsel requested closing argument before the jury, an objection...
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Wike v. State
...1st DCA 1988); Gari v. State, 364 So.2d 766 (Fla. 2d DCA 1978); Dampier v. State, 336 So.2d 683 (Fla. 2d DCA 1976); Cagnina v. State, 175 So.2d 577 (Fla. 3d DCA 1965). In fact, this is true even though in 1968 section 918.09 was incorporated as rule 3.250 and in 1970 section 918.09 was repe......
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Preston v. State, 41225
...819 (Fla.1957); Carter v. State, 101 So.2d 911 (Fla.App.1st, 1958); Faulk v. State, 104 So.2d 519 (Fla.1958); and Cagnina v. State, 175 So.2d 577 (Fla.App.3rd, 1965).4 See discussion in 23 C.J.S. Criminal Law § 983 (1961), and cases cited therein.5 This proposition has been disputed as bein......
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Wyatt v. State, 71-425
...right constitutes reversible error. Birge v. State, Fla.1957, 92 So.2d 819; Davis v. State, Fla.App.1971, 256 So.2d 22; Cagnina v. State, Fla.App.1965,175 So.2d 577. In Birge, while holding that merely exhibiting a shirt in front of the jury did not constitute testimony, the Supreme Court s......
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Raysor v. State, s. 72--61
...was a substantial prejudicial error which requies a new trial.' See also Davis v. State, Fla.App.1971, 256 So.2d 22; Cagnina v. State, Fla.App.1965, 175 So.2d 577, and Wyatt v. State, Fla.App.1972, 270 So.2d 47. In further extension, we are at a loss as a practical matter to know just how a......