Fox v. State, 88-1046
| Decision Date | 10 May 1989 |
| Docket Number | No. 88-1046,88-1046 |
| Citation | 543 So.2d 340,14 Fla. L. Weekly 1161 |
| Parties | 14 Fla. L. Weekly 1161 Randy Lamonte FOX, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Jeffrey P. Whitton, Panama City, for appellant.
Robert A. Butterworth, Atty. Gen., and John M. Koenig, Jr., Asst. Atty. Gen., Tallahassee, for appellee.
Appellant Randy Lamonte Fox appeals from his convictions for four counts of armed robbery, armed burglary, armed sexual battery, possession of cannabis and resisting an officer, and the sentences imposed therefor. We affirm in part and reverse in part and remand.
The first point raised by appellant requires this court to once again apply the harmless error test set forth in State v. DiGuilio, 491 So.2d 1129 (Fla.1986), and approved in State v. Lee, 531 So.2d 133 (Fla.1988). The specific error complained of concerns the lower court's ruling on appellant's motion to sever the charge of convicted felon in possession of a firearm. When defense counsel first moved to sever the charge before voir dire, the motion was denied. However, when defense counsel renewed the motion after voir dire, but prior to the jury being sworn, during which she revealed to the prospective jurors that appellant had a criminal past, the trial court receded from its earlier ruling and granted the motion to sever. Defense counsel then moved for mistrial, asserting that the jury had been unfairly prejudiced against appellant in that it heard that appellant had a criminal record. The court denied that motion and the matter proceeded to trial, which resulted in guilty verdicts on all charges.
Although the granting of a motion to sever is discretionary, if one of the several charges to be tried is convicted felon in possession of a firearm, severance should be granted. See Thomas v. State, 440 So.2d 581 (Fla.1983); State v. Vazquez, 419 So.2d 1088 (Fla.1982); Craft v. State, 441 So.2d 704 (Fla. 2d DCA 1983). The granting of a motion for mistrial is likewise within the court's discretion; however, it should be granted when it is necessary to ensure that the defendant receives a fair trial. Marek v. State, 492 So.2d 1055 (Fla.1986). Certainly the lower court should have granted the initial motion to sever. Having failed to do so, it caused defense counsel to reveal to the prospective jurors that appellant had a criminal past. Considering the extremely prejudicial nature of such information, the fact that the error occurred prior to the commencement of trial, and that appellant's right to a fair trial could have been preserved by selection of a new jury, we conclude that the lower court erred in denying appellant's motion for mistrial.
It is next necessary for us to decide whether the error was harmless. In so saying, we are mindful that not every error requires reversal, even when the error involves a constitutional right. DiGuilio. Application of the harmless error test requires an appellate court to review the entire record, looking both at the permissible and the impermissible evidence. DiGuilio, 491 So.2d at 1135. The permissible evidence that the jury could have legitimately relied upon in the instant case includes the testimony of four eyewitnesses, all of whom positively identified appellant at trial and whose descriptions of the perpetrator and the weapon he used were markedly similar, and, finally, evidence of both flight and that regarding the recovery and identification of items which were stolen by appellant.
The second part of the harmless error test requires that we consider the impermissible evidence which might have possibly influenced the jury's verdict. The error here consists of defense counsel's statements made during voir dire examination regarding appellant's past criminal record, and one statement made during trial by a state witness relating to the "firearm...
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