Kidd v. State, No. 5D02-3196.
| Court | Court of Appeal of Florida (US) |
| Writing for the Court | SHARP, W., J. |
| Citation | 855 So.2d 1165 |
| Parties | Lawrence Dale KIDD, Appellant, v. STATE of Florida, Appellee. |
| Docket Number | No. 5D02-3196. |
| Decision Date | 03 October 2003 |
855 So.2d 1165
Lawrence Dale KIDD, Appellant,v.
STATE of Florida, Appellee
No. 5D02-3196.
District Court of Appeal of Florida, Fifth District.
October 3, 2003.
Charles J. Crist, Jr., Attorney General, Tallahassee, and Allison Leigh Morris, Assistant Attorney General, Daytona Beach, for Appellee.
SHARP, W., J.
Kidd appeals from his judgment and sentence for having committed a lewd and lascivious battery against his then 14 year old son's, 13 year old girlfriend, a second degree felony.1 The trial court sentenced him as an habitual felony offender to 30 years in prison, and designated him as a sexual predator pursuant to section 775.21(4)(a). He raises two points on appeal:
At the close of the trial, defense counsel outlined the victim's less than commendable behavior which led to the circumstances in which the defendant was able to perpetrate the crime against her: she telephoned her boyfriend at midnight and talked to him for an hour and a half; she sneaked out of her house to meet her boyfriend and the defendant and others; she consumed a large quantity of alcohol and smoked pot, becoming very sick. During his closing argument, the prosecutor characterized defense counsel's argument as having suggested the victim should not be believed because she was acting "trashy so she got what she deserved."
Defense counsel objected to this characterization. The trial court sustained the objection. However, defense counsel did not ask for a curative instruction, nor did he move for a mistrial.
In order to preserve the issue of improper comment by a prosecutor for appellate review, defense counsel must make a contemporaneous objection to the improper comment and if the objection is sustained, counsel must move for a new trial or mistrial. Holton v. State, 573 So.2d 284 (Fla.1990), cert. denied, 500 U.S. 960, 111 S.Ct. 2275, 114 L.Ed.2d 726 (1991); Pedroza v. State, 773 So.2d 639 (Fla. 5th DCA 2000).
However, we reach this issue because Kidd filed a pro se motion for new trial, raising this issue, and the trial court addressed it at the sentencing/motions hearing following the trial. At the hearing, defense counsel adopted Kidd's motion and argued the prosecutor's improper comments merited a new trial. Thus, Kidd avoided the treatment of his pro se motion as a "legal nullity," under the theory that a criminal defendant who is represented by counsel, cannot file pro se pleadings on his or her behalf, and the court must disregard them.2
While we reach this point, we nevertheless affirm the trial court's ruling. The comments were not so egregious as to merit a new trial and we find no abuse of discretion in denying Kidd a new trial. See McCarthy v. State, 773 So.2d...
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Saintelien v. State, No. SC06-1888.
...State, 911 So.2d 229 (Fla. 2d DCA 2005) (permitting such challenges to be raised in criminal postconviction proceedings); Kidd v. State, 855 So.2d 1165 (Fla. 5th DCA 2003) (same).1 We resolve this conflict by holding that a rule 3.800(a) motion to correct an illegal sentence may be used to ......
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Cabrera v. State, No. 5D03-2367.
...error" because section 775.21(5)(a)1.3 requires that the designation be made at the time of sentencing. See also Kidd v. State, 855 So.2d 1165 (Fla. 5th DCA 2003). In Angell v. State, 712 So.2d 1132 (Fla. 2d DCA 1998), the Second District Court took a completely different approach and held ......
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Bush v. City of Daytona Beach, Case No: 6:12-cv-1541-Orl-36TBS
...investigation, Plaintiff has failed to state a claim in Count I upon which relief can be granted. Fl. Stat. § 768.28; Pritchett, 855 So. 2d at 1165. D. Plaintiff has failed to state a claim for false imprisonment In support of his claim for false imprisonment, Plaintiff alleges that he was ......
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Irving v. John, 3:21-cv-1002-MMH-MCR
...of care has arisen. See Fernander, 947 So.2d at 589-90 (finding no duty to conduct a polygraph examination non-negligently); Pritchett, 855 So.2d at 1165 (finding no duty when the plaintiff alleged negligent supervision of an investigation); Alvarez-Mena v. Miami-Dade County, 305 So.3d 63, ......
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Saintelien v. State, No. SC06-1888.
...State, 911 So.2d 229 (Fla. 2d DCA 2005) (permitting such challenges to be raised in criminal postconviction proceedings); Kidd v. State, 855 So.2d 1165 (Fla. 5th DCA 2003) (same).1 We resolve this conflict by holding that a rule 3.800(a) motion to correct an illegal sentence may be used to ......
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Cabrera v. State, No. 5D03-2367.
...error" because section 775.21(5)(a)1.3 requires that the designation be made at the time of sentencing. See also Kidd v. State, 855 So.2d 1165 (Fla. 5th DCA 2003). In Angell v. State, 712 So.2d 1132 (Fla. 2d DCA 1998), the Second District Court took a completely different approach and held ......
-
Bush v. City of Daytona Beach, Case No: 6:12-cv-1541-Orl-36TBS
...investigation, Plaintiff has failed to state a claim in Count I upon which relief can be granted. Fl. Stat. § 768.28; Pritchett, 855 So. 2d at 1165. D. Plaintiff has failed to state a claim for false imprisonment In support of his claim for false imprisonment, Plaintiff alleges that he was ......
-
Irving v. John, 3:21-cv-1002-MMH-MCR
...of care has arisen. See Fernander, 947 So.2d at 589-90 (finding no duty to conduct a polygraph examination non-negligently); Pritchett, 855 So.2d at 1165 (finding no duty when the plaintiff alleged negligent supervision of an investigation); Alvarez-Mena v. Miami-Dade County, 305 So.3d 63, ......