McBride v. State
| Decision Date | 11 April 1967 |
| Docket Number | No. H-456,H-456 |
| Citation | 197 So.2d 850 |
| Parties | Robert Joseph McBRIDE, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
George G. Phillips, Public Defender, for appellant.
Earl Faircloth, Atty. Gen., and Wallace E. Allbritton, Asst. Atty. Gen., for appellee.
Appellant was convicted of robbery after a jury trial in which he was represented by the public defender.
The robbery occurred at a gasoline filling station in the early morning hours. The station attendant positively identified the appellant as the person who held a sawed-off shotgun on him during the episode. Of this, the testimony given at the trial seems to leave no reasonable doubt, and the jury apparently so found.
Appellant presents two questions for review by this court. First, there is the contention that the trial judge's charge to the jury on the element of flight was prejudicial to the defendant. It is argued that the language employed in giving the charge to the jury suggested the defendant's guilt. Examination of the instruction in light of the record indicates that it is supported adequately and fairly by the evidence.
In contrast to appellant's contention that the court's charge to the jury was suggestive of the defendant's guilt, it clearly appears that the jury was influenced to that view by the direct 'eyeball' testimony of the station attendant who gave a vivid account of the assault made upon him by the appellant while armed with a sawed-off shotgun.
The second ground for reversal urged by appellant was the trial court's refusal to include in its instructions to the jury a charge requested by the defendant as to the statutory penalty for the offense of robbery. Appellant directs our attention to the provisions of section 918.10(1), Florida Statutes, 1965, F.S.A., which purports to require the judge presiding over the trial to include in his charge the penalty fixed by law for the offense for which the accused is being tried. While appellant, with commendable candor, concedes that the cited statutory provision is generally construed as being discretionary rather than mandatory, citing Holmes v. State, Fla.App., 181 So.2d 586, he seeks to distinguish this case from Holmes by stating that in the instant case there was a specific request for an instruction on penalty, whereas in Holmes there does not appear to have been an express request for the instruction.
The distinction sought to be made by appellant...
To continue reading
Request your trial
-
Tascano v. State, KK-22
...Florida Constitution. McCORD, C. J., and MILLS, J., concur. 1 See also, § 918.10(1), Fla.Stat. (1977).2 See also, McBride v. State, 197 So.2d 850 (Fla. 1st D.C.A. 1967) and Holmes v. State, 181 So.2d 586 (Fla. 3d D.C.A. 1965).3 See Johnson v. State, 308 So.2d 38 (Fla.1975). Accord, State v.......
-
State v. Terry
...language in the statute is construed to authorize, but not to require the procedure. E.g., Simmons v. State, supra; McBride v. State, 197 So.2d 850 (Fla.App.1st Dist.1967). In Simmons v. State, supra, at 208, this Court said:The preservation of the inherent powers of the three branches of g......
-
State v. Muentner
...whether to apprise the jury of the potential penalties (see, e.g., Conner v. State, 253 So.2d 160 (Fla.App.1961); McBride v. State, 197 So.2d 850 (Fla.App.1967); Holmes v. State, 181 So.2d 586 (Fla.App.1965)), the presence of this direction to trial courts to apprise the juries of penalties......
-
Williams v. State, 79-558
...to engage in the act of changing the meaning of a word or interpreting the meaning of the court's rule. Simmons, like McBride v. State, 197 So.2d 850 (Fla. 1st DCA 1967) and Holmes v. State, 181 So.2d 586 (Fla. 3rd DCA 1965) are interpretations of statutory wording and these cases are based......