Rollins v. State, 77-665
Decision Date | 15 August 1978 |
Docket Number | No. 77-665,77-665 |
Citation | 369 So.2d 950 |
Parties | Percy ROLLINS, Appellant, v. The STATE of Florida, Appellee. |
Court | Florida District Court of Appeals |
Bennett H. Brummer, Public Defender and Warren S. Schwartz, Asst. Public Defender and Andrew Rosen, Legal Intern, for appellant.
Robert L. Shevin, Atty. Gen., and Paul Mendelson, Asst. Atty. Gen., for appellee.
Before PEARSON, BARKDULL and KEHOE, JJ.
Percy Rollins was charged by information with second degree murder. He was found guilty by a jury, adjudged guilty by the court and sentenced to a term of imprisonment for life. He presents for review two points, each of which merits discussion.
The first point we discuss is defendant's contention that he was entitled to discharge pursuant to the speedy trial rule 1 upon his motion filed January 17, 1977. Appellant's brief lists eleven continuances in the trial of this cause. He admits that many were at his request and others with his agreement. The defendant has not furnished us with the record of the proceedings at some of these continuances. At the time that the trial judge denied the motion for discharge, he cautioned the defendant that his ruling was based upon waiver of the rule and requested on the record that in the event of appeal of his ruling, the defendant should bring to this court the record of all continuances. This was not done. Accordingly, we find no error under this point upon this record. Cf. Montalvo v. State, 323 So.2d 674 (Fla.3d DCA 1975).
The Defendant's remaining point shows reversible error on this record. It is as follows "Where the defendant was charged with second degree murder, the failure of the trial court to instruct the jury on third degree murder when so requested by the defendant, constituted error per se and thus the defendant was deprived of his right to be pardoned by the jury and his constitutional right to trial by jury in violation of the Sixth and Fourteenth Amendment to the Constitution of the United States and Article 1, Sections 9 and 16 of the Constitution of the State of Florida."
In Brown v. State, 206 So.2d 377 (Fla.1968), the Supreme Court of Florida directed:
It should be noted that the pardoning power of a jury is a creature of legislative lineage. Formerly, Section 919.14, Florida Statutes (1969), provided:
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Lyons v. State, 78-1378
...346 So.2d 67 (Fla.1977); Brown v. State, 206 So.2d 377 (Fla.1968); Parker v. State, 389 So.2d 336 (Fla. 4th DCA 1980); Rollins v. State, 369 So.2d 950 (Fla. 3d DCA 1978), cert. denied, 367 So.2d 1126 (Fla.1979); Robinson v. State, 338 So.2d 1309 (Fla. 4th DCA 1976); Matera v. State, 218 So.......
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State v. Rollins
...we find no error under this point upon this record. Cf. Montalvo v. State, 323 So.2d 674 (Fla. 3d DCA 1975). Rollins v. State, 369 So.2d 950 (Fla. 3d DCA 1978). (Footnote Although this court found no error in the denial of the motion for discharge, it determined that the trial court committ......