Lamar v. State, 90-2018

• Decision Date: 07 August 1991
• Docket Number: No. 90-2018,90-2018
• Parties: Stanford LAMAR, Appellant, v. STATE of Florida, Appellee. 583 So.2d 771, 16 Fla. L. Week. D2069
• Court: Florida District Court of Appeals

Page 771

583 So.2d 771

Stanford LAMAR, Appellant, v. STATE of Florida, Appellee.

No. 90-2018.

583 So.2d 771, 16 Fla. L. Week. D2069

District Court of Appeal of Florida,

Fourth District.

Aug. 7, 1991.

Richard L. Jorandby, Public Defender, and Margaret Good, Asst. Public Defender, West Palm Beach, for appellant.

Robert A. Butterworth, Atty. Gen., Tallahassee, and Douglas J. Glaid, Asst. Atty. Gen., West Palm Beach, for appellee.

DOWNEY, Judge.

Appellant, Stanford Lamar, was convicted by a jury of robbery and sentenced as an habitual offender to thirty years' imprisonment. Lamar appeals the conviction, contending that the trial court erred in denying him the closing argument at trial, in denying him adequate time to argue his case to the jury, and in denying his motion for a new trial, which demonstrated that a juror had lied during voir dire examination by denying any previous arrest record or acquaintance with court personnel. We believe error is apparent from the record requiring reversal of the conviction.

Lamar's first appellate point has to do with the denial of closing argument. At trial Lamar did not take the stand nor did he offer any other witnesses. When his counsel proposed to make the closing argument after the state had concluded, the court refused. Lamar claims he was entitled to close, having offered no testimony in defense. The state disagrees, contending that the defendant is not entitled to close unless he takes the stand himself. We reject the state's argument as a misconstruction of Florida Rule of Criminal Procedure 3.250, which provides:

In all criminal prosecutions the accused may at his option be sworn as a witness in his own behalf, and shall in such case be subject to examination as other witnesses, but no accused person shall be compelled to give testimony against himself, nor shall any prosecuting attorney be permitted before the jury or court to comment on the failure of the accused to testify in his own behalf, and a defendant offering no testimony in his own behalf, except his own, shall be entitled to the concluding argument before the jury.

The final phrase of said rule gives the defendant in a criminal case the right to closing argument unless he offers witnesses other than himself. Stated differently, the defendant is entitled to close the argument if he offers no witnesses, or if he offers simply himself as a witness, but not if he offers someone other than or in addition to himself. See Terwilliger v. State, 535 So.2d 346 (Fla. 1st DCA 1988). We thus conclude that Lamar is entitled to a new trial.

We mention two other problems raised by Lamar, since the case is to be retried.

It appears that the trial of the...