Evers v. State
| Decision Date | 03 July 1973 |
| Docket Number | No. 73--65,73--65 |
| Citation | 280 So.2d 30 |
| Parties | Dan EVERS, Appellant, v. The STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Phillip A. Hubbart, Public Defender and John Lipinski, Asst. Public Defender, for appellant.
Robert L. Shevin, Atty. Gen. and Joel D. Rosenblatt, Asst. Atty. Gen., for appellee.
Before PEARSON, CHARLES CARROLL and HAVERFIELD, JJ.
The appellant and two other men were charged with aggravated battery, in violation of § 784.045, and in a second count with robbery, in violation of § 813.011 Fla.Stat., F.S.A. On trial before a jury the appellant was found guilty of aggravated battery, and, on the robbery count, was found guilty of petit larceny. The sentence imposed was imprisonment in the state penitentiary for a term of three years, with credit given for 42 days' time served in jail prior to sentencing.
On this appeal therefrom appellant contends the court erred by denying his motions for mistrial made on occasions where the prosecutor in opening argument and in questioning a witness at trial made remarks claimed by appellant to be prejudicial and such as to deprive him of a fair trial. Additionally, appellant contends the court erred in denying his motion for a continuance made during the course of the trial. Upon consideration thereof in the light of the record, briefs and argument, we hold that no reversible error has been made to appear.
The motions for mistrial made for certain statements of the prosecutor in opening argument were not preceded by objection and request to the court to give a 'disregard instruction' to the jury. Morris v. State, 100 Fla. 850, 130 So. 582. Reference to the same subject when made in the question by the prosecutor during the trial prompted an objection and motion for a mistrial by defendant's counsel. The objection was sustained, and motion for mistrial denied. We hold that in the context of the evidence in this case the denial of the defendant's motion for mistrial did not constitute harmful error. See Williams v. State, Fla.1959, 110 So.2d 654. In Garcia v. State, Fla.App.1962, 142 So.2d 318, the court said:
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Doyle v. State
... ... instruction to the jury which the attorney, without relinquishing his demand for mistrial, conceded was satisfactory. 2 The determination of whether substantial justice warrants the granting of a mistrial is within the discretion of the trial court. Evers v. State, 280 So.2d 30 (Fla. 3d DCA 1973). Dealing with the conduct of jurors is likewise left to the sound discretion of the court. Walker v. State, 330 So.2d 110 (Fla. 3d DCA), cert. denied, 341 So.2d 1087 (Fla.1976). We find no abuse of that discretion here ... Finally, ... ...
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Goree v. State, 80-2491
...failure to attempt to reopen the case the following day was, under those circumstances, deemed excusable. But see Evers v. State, 280 So.2d 30 (Fla. 3d DCA 1973) (noting that even though closing arguments had been made the day before, no motion to reopen the case for the purpose of presenti......
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Atkinson v. State, 79-421
...Steven L. Bolotin, Asst. Atty. Gen., for appellee. Before PEARSON, BARKDULL and NESBITT, JJ. PER CURIAM. Affirmed. See Evers v. State, 280 So.2d 30 (Fla. 3d DCA 1973); Prokos v. State, 209 So.2d 484 (Fla. 3d DCA 1968); and Garcia v. State, 142 So.2d 318 (Fla. 2d DCA ...
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Taylor v. State
...of the absence of a specific fundamental or prejudicial error. See Perry v. State, 146 Fla. 187, 200 So. 525 (1941); Evers v. State, 280 So.2d 30 (Fla.App.1973). As to appellant's second point, dealing with the rejection of the jury's recommendation of mercy and the immediate imposition of ......