Kruglak v. State, 73--1254
| Decision Date | 13 August 1974 |
| Docket Number | No. 73--1254,73--1254 |
| Parties | Billy T. KRUGLAK, Appellant, v. The STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Jepeway, Gassen & Jepeway, Miami, for appellant.
Robert L. Shevin, Atty. Gen., and Joel D. Rosenblatt, Asst. Atty. Gen., for appellee.
Before BARKDULL, C.J., and PEARSON and HAVERFIELD, JJ.
Appellant seeks review of a judgment of conviction for (1) unlawful possession of marijuana, and (2) conspiracy to commit a felony.
Defendant-appellant, Billy T. Kruglak, was informed against for unlawful possession of marijuana and conspiracy to sell marijuana. Four other co-defendants were informed against in the same information and three of the co-defendants were charged in the conspiracy count along with the defendant. Appellant and these three codefendants were tried by jury and were represented by one counsel. At the conclusion of the trial, the jury found appellant guilty of both counts. Thereafter, the trial judge sentenced the defendant to six months in the county jail, to be served on weekends. The defendant appeals therefrom and urges three points wherein error on the part of the trial court allegedly has occurred.
Defendant Kruglak first contends that the prosecuting attorney's closing argument was improper and prejudicial thereby denying the appellant his right to due process of law. We cannot agree.
After a close examination of the record, we conclude that the allegedly improper and prejudicial remarks of the prosecuting attorney in his closing argument were made in response to statements of defense counsel made in the initial closing argument. Cf. Evans v. State, Fla.App.1965, 178 So.2d 892; Ricks v. State, Fla.App.1971, 242 So.2d 763. Moreover, no objection was interposed at the time the remarks were made. Except for fundamental error, in absence of a timely objection interposed at trial, defendant may not raise objections to remarks of the prosecutor for the first time on appeal. State v. Jones, Fla.1967, 204 So.2d 515; Hall v. State, Fla.App.1967, 203 So.2d 202; Smith v. State, Fla.App.1971, 243 So.2d 602.
Appellant secondly argues that the trial court erred in allowing witnesses to testify for the state, whose identities were not supplied to the appellant, even though he timely had demanded their identities.
Upon the failure of a party to make discovery, the trial court should make a careful inquiry as to why the disclosure was not made, the extent of the prejudice to the other party and the feasibility of rectifying that prejudice by some intermediate procedure. Although under RCrP 3.220(j), a trial judge may prohibit witnesses from testifying, this sanction should be exercised only under the most compelling circumstances and where the omission cannot be otherwise remedied. Williams v. State, Fla.App.1972, 264 So.2d 106 and cases cited therein.
Turning to the case sub judice, we find that defense counsel's...
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State v. Burgoon
...(1975). Suppression of testimony is a drastic remedy which should be exercised only under compelling circumstances (Kruglak v. State, 300 So.2d 315, 316 (Fla.App.1974)); testimony should not be excluded when the state's nondisclosure is inadvertent and no prejudice is shown by defendant. Pe......
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...prejudice is not shown by the non-compliance, reversal is not warranted. Richardson v. State, 246 So.2d 771 (Fla.1971); Kruglak v. State, 300 So.2d 315 (Fla. 3d DCA 1974). Relevant evidence should not be excluded from the jury unless no other remedy suffices. Cooper v. State, 336 So.2d 1133......
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