Smart v. State, 91-297

Decision Date07 April 1992
Docket NumberNo. 91-297,91-297
Citation596 So.2d 786
PartiesFreddie Lee SMART, Appellant, v. The STATE of Florida, Appellee. 596 So.2d 786, 17 Fla. L. Week. D907
CourtFlorida District Court of Appeals

Bennett A. Brummer, Public Defender, and Peggy Fisher, Sp. Asst. Public Defender, for appellant.

Robert A. Butterworth, Atty. Gen., and Roberta G. Mandel, Asst. Atty. Gen., for appellee.

Before BASKIN, JORGENSON and GODERICH, JJ.

PER CURIAM.

The defendant, Freddie Lee Smart, appeals from his conviction for resisting arrest without violence. We reverse the defendant's conviction and remand for a new trial.

The defendant contends that the trial court erred in (a) permitting the prosecutor to argue, over objections, that the arresting officer has had contacts with the defendant in the past, and (b) allowing the arresting officer to testify, over objections, that he has had numerous contacts with the defendant in the past. We agree.

First, the statements by the prosecutor and the arresting officer's testimony regarding the defendant's past contacts with the arresting officer, were solely relevant to establish the defendant's bad character, and were therefore inadmissible. See Williams v. State, 110 So.2d 654 (Fla.), cert. denied, 361 U.S. 847, 80 S.Ct. 102, 4 L.Ed.2d 86 (1959); State v. Lee, 531 So.2d 133 (Fla.1988); Gonzalez v. State, 559 So.2d 748 (Fla. 3d DCA 1990); Harris v. State, 427 So.2d 234 (Fla. 3d DCA 1983). Second, under the facts of this case, the defense counsel's failure to request a curative instruction was not fatal. The record demonstrates that at one point the defense counsel attempted to make a motion, but the trial court denied the motion without giving the defense counsel an opportunity to state the motion for the record. Additionally, when taking into consideration that throughout the defendant's trial, which lasted less than two and one half hours, there were approximately eighteen statements made by the prosecutor and the arresting officer, which clearly implied that the defendant had either been arrested before or that the arresting officer has had numerous contacts with the defendant in the past, we find that a curative instruction would not have been sufficient to dissipate the prejudicial effects of this error. Post v. State, 315 So.2d 230, (Fla. 2d DCA 1975). As stated in Post, "[t]he die was cast--the damage was done." Post, 315 So.2d at 232. Third, we do not find that the complained of error was harmless. See ...

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8 cases
  • Villanueva v. State, 3D04-1654.
    • United States
    • Florida Supreme Court
    • 28 décembre 2005
    ...character of the accused during its case in chief, since the accused must first put his good character in issue."); Smart v. State, 596 So.2d 786, 787 (Fla. 3d DCA 1992)(holding that arresting officer's comment regarding his past contact with the defendant was inadmissible because comment w......
  • Bozeman v. State, 96-0822
    • United States
    • Florida District Court of Appeals
    • 3 septembre 1997
    ...See Broderick v. State, 564 So.2d 622 (Fla. 4th DCA 1990); Bolden v. State, 543 So.2d 423 (Fla. 5th DCA 1989); Smart v. State, 596 So.2d 786 (Fla. 3d DCA 1992). Additionally, Wimberly's portrayal of the unit's inmates is legally problematic because it was specific evidence of Bozeman's bad ......
  • Nordelo v. State, 91-1163
    • United States
    • Florida District Court of Appeals
    • 21 juillet 1992
    ...Bryan v. State, 533 So.2d 744 (Fla.1988), cert. denied, 490 U.S. 1028, 109 S.Ct. 1765, 104 L.Ed.2d 200 (1989); Smart v. State, 596 So.2d 786 (Fla. 3d DCA 1992); Minick v. State, 560 So.2d 386 (Fla. 3d DCA 1990); Sec. 90.404(2)(a), Fla.Stat. (1989). "Relevant evidence is evidence tending to ......
  • Shorter v. Sec'y
    • United States
    • U.S. District Court — Middle District of Florida
    • 12 décembre 2017
    ... ... Upon due consideration of the pleadings and the state court record, the Court concludes that the Petition must be denied.I. PROCEDURAL HISTORYPetitioner, ... ...
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