Carr v. State, No. 82-1056

CourtCourt of Appeal of Florida (US)
Writing for the CourtHENDRY
Citation430 So.2d 978
PartiesDarrell CARR, Appellant, v. The STATE of Florida, Appellee.
Docket NumberNo. 82-1056
Decision Date10 May 1983

Page 978

430 So.2d 978
Darrell CARR, Appellant,
v.
The STATE of Florida, Appellee.
No. 82-1056.
District Court of Appeal of Florida,
Third District.
May 10, 1983.

Page 979

Bennett H. Brummer, Public Defender, and Howard K. Blumberg, Asst. Public Defender, for appellant.

Jim Smith, Atty. Gen., and Calvin L. Fox, Asst. Atty. Gen., for appellee.

Before HENDRY, HUBBART and BASKIN, JJ.

HENDRY, Judge.

The appellant was arrested at the scene of the crime and charged with robbery with a firearm (Count I), aggravated battery (Count II), burglary (Count III), kidnapping (Count IV), and unlawful possession of a firearm while engaged in a criminal offense (Count V). The State nolle prossed Count V before the start of the trial. A jury found the appellant guilty as charged on Counts I, II, and III, and convicted him of false imprisonment, a lesser included offense under Count IV. The trial court sentenced the appellant to 134 years for the armed robbery conviction, 15 years for the aggravated battery conviction, and 5 years for the false imprisonment conviction; all sentences to be served consecutively. 1 We affirm.

The appellant raises two points on appeal. The first concerns the prejudicial and inflammatory comments made by the assistant state's attorney in the course of his closing argument. 2 This is a situation which arises with shocking frequency. See, e.g., Williams v. State, 425 So.2d 591 (Fla. 3d DCA 1982); Hines v. State, 425 So.2d 589 (Fla. 3d DCA 1982); Jackson v. State, 421 So.2d 15 (Fla. 3d DCA 1982); Chapman v. State, 417 So.2d 1028 (Fla. 3d DCA 1982); Gomez v. State, 415 So.2d 822 (Fla. 3d DCA 1982); Harris v. State, 414 So.2d 557 (Fla. 3d DCA 1982); Kindell v. State, 413 So.2d 1283 (Fla. 3d DCA 1982); Harper v. State, 411 So.2d 235 (Fla. 3d DCA 1982); and McMillian v. State, 409 So.2d 197 (Fla. 3d DCA 1982). While we find that the prosecutor's final argument was infected with error, we cannot hold that it requires reversal. Williams v. State, supra. This is not the same situation as in Hines v. State, supra, where we found that the evidence was not so overwhelming so as to justify overlooking the error. Id. at 591. In this case, appellant was found hiding in the warehouse where the crime was committed. The gun and articles stolen from the victim were found within one foot of the hiding place. The victim identified the appellant

Page 980

as one of the two men involved in the crime. Here then, the evidence is so overwhelming that the prosecutor's statements must be considered as harmless error. Williams v. State, supra.

The second point questions, for the first time, the imposition of separate sentences for the armed robbery and the aggravated battery convictions. Appellant now argues that aggravated battery is a lesser included offense of armed robbery....

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