Deliford v. State, 85-2718
| Decision Date | 31 March 1987 |
| Docket Number | No. 85-2718,85-2718 |
| Citation | 505 So.2d 523,12 Fla. L. Weekly 894 |
| Parties | 12 Fla. L. Weekly 894 Byron D. DELIFORD, Appellant, v. The STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Bennett H. Brummer, Public Defender, and Robert Kalter, Sp. Asst. Public Defender, for appellant.
Robert A. Butterworth, Atty. Gen., and Mark J. Berkowitz, Asst. Atty. Gen., and Geri Weintraub, Certified Legal Intern, for appellee.
Before BARKDULL, HUBBART and BASKIN, JJ.
The defendant Byron D. Deliford appeals a judgment of conviction and sentence entered against him on an adverse jury verdict. We affirm the judgment of conviction, reverse the sentence, and remand for resentencing, based on the following briefly stated legal analysis.
First, we reject the defendant's contention that the trial court erred in allowing the state to introduce similar act evidence of an auto theft for which the defendant had previously been found not guilty because, as counsel conceded at oral argument, the defendant was not, in fact, acquitted of the auto theft. We further reject the defendant's contention, made at oral argument, that the auto theft evidence was not otherwise admissible, as such evidence was plainly relevant in order to give an intelligent account of the crime charged. See Kinchen v. State, 297 So.2d 341, 341 (Fla. 3d DCA 1974); Feldman v. State, 212 So.2d 21, 22 (Fla. 3d DCA 1968); Horner v. State, 149 So.2d 863, 865 (Fla. 3d DCA 1963).
Second, we reject the defendant's contention that the trial court erred in denying a defense motion for a mistrial based on the prosecuting attorney's closing argument to the jury because: (a) the defendant did not object to the complained-of argument until after the prosecuting attorney had completed his argument, and, accordingly, the point has not been properly preserved for appellate review, see Wilson v. State, 436 So.2d 908, 910 (Fla.1983); State v. Cumbie, 380 So.2d 1031, 1033 (Fla.1980); Clark v. State, 363 So.2d 331, 334-35 (Fla.1978), and, (b) the complained-of argument was entirely proper in any event. See Francis v. State, 384 So.2d 967, 968-69 (Fla. 3d DCA 1980); Delaney v. State, 342 So.2d 1098, 1099 (Fla. 3d DCA 1977); Wilson v. State, 305 So.2d 50, 52 (Fla. 3d DCA 1975).
Third, we accept the state's concession that the defendant's sentencing point has merit. The Florida Supreme Court has held, subsequent to the imposition of sentence below, that habitual offender...
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...Before BASKIN and JORGENSON, JJ., and WARREN H. COBB, Associate Judge. WARREN H. COBB, Associate Judge. In the case of Deliford v. State, 505 So.2d 523 (Fla. 3d DCA 1987), this court reversed the departure sentence imposed upon the defendant Deliford because the reason given therefor was in......