Mabery v. State
| Decision Date | 26 November 1974 |
| Docket Number | No. 74-457,74-457 |
| Citation | 303 So.2d 369 |
| Parties | John MABERY, Appellant, v. The STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Phillip A. Hubbart, Public Defender, Ullman, Kimler & Entin, Miami, for appellant.
Robert L. Shevin, Atty. Gen., and Joel D. Rosenblatt, Asst. Atty. Gen., for appellee.
Before PEARSON, HAVERFIELD and NATHAN, JJ.
A jury found the appellant 1) guilty of entering, without breaking, a dwelling with intent to commit therein a felony, to wit, grand larceny, and 2) guilty of grand larceny. Upon adjudication of guilt, appellant was sentenced to two concurrent five year sentences. On this appeal, six points for reversal are presented. We find no prejudicial error in the record and we, therefore, affirm.
One of appellant's points argues that the evidence was insufficient. We have reviewed the record in the light of the argument upon this point and find the evidence of appellant's guilt to be not only sufficient, but also strong, clear and certain. The only real question presented to the jury was the credibility of the defendant's testimony that he did not intend to steal the television set involved but rather was moving it to another house for a third party.
Appellant's main focus on this appeal is directed to the court's failure to grant a mistrial upon the following argument to the jury of the state attorney: 'In fact, when he (the defendant) is going to go get up on the stand and tell you something where it is questionable, he should bring witnesses to testify on his behalf.' The argument of the state attorney was improper. It is not the defendant's duty to prove his innocence. Davis v. State, Fla.1956, 90 So.2d 629. Nevertheless, we do not find reversible error in this case because, other than the unfortunate statement quoted, the tenor of the state attorney's argument was not improper. The State is permitted to comment upon the essential unbelievability of a defendant's testimony. See Fitzgerald v. State, Fla.App.1969, 227 So.2d 45. The State may also show that certain testimony is uncontraverted. Clinton v. State,56 Fla. 57, 47 So. 389 (1908).
The decision as to whether a particular comment to the jury constitutes reversible error must depend upon the circumstances of a particular case. State v. Jones, Fla.1967, 204 So.2d 515; Woodside v. State, Fla.App.1968, 206 So.2d 426.
We point out once again that the proper procedure to follow where improper remarks are made that...
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