Lowman v. State, 76-2262
Court | Court of Appeal of Florida (US) |
Citation | 353 So.2d 652 |
Docket Number | No. 76-2262,76-2262 |
Parties | Charles LOWMAN, Appellant, v. The STATE of Florida, Appellee. |
Decision Date | 27 December 1977 |
Bennett H. Brummer, Public Defender, Paul Morris, Asst. Public Defender, and Thomas Wills, Special Asst. Public Defender, for appellant.
Robert L. Shevin, Atty. Gen. and Margarita G. Esquiroz and Jose R. Rodriguez, Asst. Attys. Gen., for appellee.
Before NATHAN and KEHOE, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
Appellant, defendant below, was convicted by a jury of robbery (Count I) and display of a firearm while committing a felony (Count II). He was sentenced to twenty years imprisonment on Count I and fifteen years on Count II, the second sentence to run concurrently with the first. Subsequently the court suspended the sentence on Count II. It is from this conviction and his sentence that defendant appeals.
While attempting to depart from the home of his girlfriend, defendant passed through the living room in which the girl's mother lay sleeping. The mother awakened, defendant pointed a gun at her, and stole her wallet.
Count I of the information charged defendant with taking the wallet and the cash therein. During the course of trial, the girlfriend's father testified that another $150 in cash, a watch and a gold cross were also missing from the house. Before closing arguments, defense counsel requested the court to instruct the jury to disregard the testimony regarding the cash, watch and cross as pertaining to a separate offense not charged in the information. The request was denied. Defense counsel renewed his request for a curative instruction and moved for a mistrial in the alternative. Both motions were denied.
Defendant contends that the trial court committed reversible error in denying his motion to instruct the jury to disregard a collateral crime or in the alternative to declare a mistrial; that since the adjudication of guilt on Count I is void, the trial court erred in adjudicating defendant guilty on Count II because conviction on Count II is dependent on conviction on Count I; and that the court erred in entering a suspended sentence on Count II since both convictions arose from the same transaction.
In regard to defendant's first contention, the record reveals that the defense never objected to the elicitation of the testimony herein challenged as immaterial and prejudicial, nor moved to strike it. On the contrary, defense counsel extensively cross examined three prosecution witnesses on the issue of the missing property in an effort to impeach their credibility. This combination of failure to raise timely objections and exploitation for impeachment value is sufficient of itself to vitiate defendant's argument. See Killingsworth v. State, 90 Fla. 299, 105 So. 834 (1925); Taylor v. State, 289 So.2d 421 (Fla.3d DCA 1974). But...
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...lack of "standing," and was not required to take testimony on the legal merits of the motion to suppress. charge. See Lowman v. State, 353 So.2d 652, 653 (Fla. 3d DCA 1977). Beyond that, we think there are abundant other grounds for rejecting the defendant's suppression point herein. The pr......
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