Terwilliger v. State, s. 87-2024
Decision Date | 19 December 1988 |
Docket Number | 87-2025,Nos. 87-2024,s. 87-2024 |
Citation | 535 So.2d 346,13 Fla. L. Weekly 2755 |
Parties | 13 Fla. L. Weekly 2755 Stanley Allan TERWILLIGER, Appellant, v. STATE of Florida, Appellee. |
Court | Florida District Court of Appeals |
Daniel A. McKeever, Jr., Live Oak, and John S. Gonas, Jr., Mobile, Ala., for appellant.
Robert A. Butterworth, Atty. Gen. and William A. Hatch, Asst. Atty. Gen., Tallahassee, for appellee.
Appellant, Stanley Allan Terwilliger, appeals his convictions for conspiracy to traffic in cannabis, aiding and abetting in the possession of cannabis, and conspiracy to possess cannabis. Of the three issues raised on appeal, we find no error in the trial court's denial of Terwilliger's motion for judgment of acquittal; however, we agree with appellant that the trial court erred in denying the requested entrapment instruction and in allowing the state an additional closing argument. We therefore reverse and remand.
It is axiomatic that a defendant has the right to have the jury instructed on the law of entrapment when evidence is presented which tends to prove such defense. Kwasniewski v. State, 303 So.2d 373 (Fla. 1st DCA 1974) ( ), and Canty v. State, 471 So.2d 676 (Fla. 1st DCA 1985) ( ). Once the defendant has shown some evidence which suggests the possibility of entrapment, the issue of entrapment must be submitted to the jury with the appropriate instruction. State v. Wheeler, 468 So.2d 978 (Fla.1985) ( ). It is not necessary that the defendant convince the trial judge of the merits of the entrapment defense because the trial judge may not weigh the evidence before him in determining whether the instruction is appropriate; it is enough if the defense is suggested by the evidence presented. Pope v. State, 458 So.2d 327 (Fla. 1st DCA 1984), rev. denied, 462 So.2d 1108 (1985) ( ). Even a defendant who denies one of the elements of the offense for which he is charged is entitled to an entrapment instruction. See Mathews v. United States, 485 U.S. 58, 108 S.Ct. 883, 99 L.Ed.2d 54 (1988) ( ).
In the case at bar, the state introduced into evidence a tape-recorded telephone conversation in which appellant had communicated to undercover agents his reluctance to participate in the drug transaction because he did not know the people involved and was uncomfortable with the situation. These statements were corroborated by state witness William Hughes who testified during cross-examination that appellant had advised him concerning an incident involving undercover agents contacting appellant a second time after he had earlier told them that he did not want to do the drug deal. Whether this evidence was sufficient to prove entrapment as a matter of law is not for this court or for the trial judge to decide. It was, nevertheless, sufficient to warrant an entrapment instruction, and the failure to so instruct constitutes reversible error. See Canty.
In regard to the issue of the trial court's allowing the state an additional closing argument, we conclude that such action was violative of Florida Rule of Criminal Procedure 3.250, providing in part that a defendant who offers "no testimony in his own behalf, except his own, shall be entitled to the concluding argument before the jury." A substantial body of case law recognizes that a statute or rule of procedure which confers upon the accused the right to conclude an argument is a substantial procedural right, the denial of which constitutes reversible error, notwithstanding that the state's evidence may be more than adequate to support a verdict of guilty. See, e.g., Birge v. State, 92 So.2d 819 (Fla.1957); Staples v. State, 298 So.2d 545 (Fla. 2d DCA 1974); Raysor v. State, 272 So.2d 867 (Fla. 4th DCA 1973). In the instant case, appellant neither testified nor offered any evidence in his behalf. He therefore was entitled to the last argument before the jury. Wright v. State, 87 So.2d 104 (Fla.1956) ( ).
The record reveals that the lower court, in granting additional closing arguments, was influenced by its erroneous belief that the defense's responsive arguments were beyond the scope of those made by the state. Although appellant's counsel referred to the testimony of William Hughes in his opening argument, the state chose not to...
To continue reading
Request your trial-
Wike v. State
...DCA 1992); Lamar v. State, 583 So.2d 771 (Fla. 4th DCA 1991); Crowley v. State, 558 So.2d 529 (Fla. 4th DCA 1990); Terwilliger v. State, 535 So.2d 346 (Fla. 1st DCA 1988); Gari v. State, 364 So.2d 766 (Fla. 2d DCA 1978); Dampier v. State, 336 So.2d 683 (Fla. 2d DCA 1976); Cagnina v. State, ......
-
Gurican v. State, 89-125
...court further held that denial of this vested procedural right constitutes reversible error. 104 So.2d at 523. In Terwilliger v. State, 535 So.2d 346, 348 (Fla. 1st DCA 1988), this court observed that-- [a] substantial body of case law recognizes that a statute or rule of procedure which co......
-
Seo v. State, 1D12–3179.
...be, the defense is entitled to the instruction.” Morgan v. State, 112 So.3d 122, 124 (Fla. 5th DCA 2013). See also Terwilliger v. State, 535 So.2d 346, 347 (Fla. 1st DCA 1988) (“It is axiomatic that a defendant has the right to have the jury instructed on the law of entrapment when evidence......
-
Ayala v. State, Case No. 2D16–3327
...met, regardless of how weak or improbable the evidence may be, the defense is entitled to the instruction" (citing Terwilliger v. State, 535 So.2d 346, 347 (Fla. 1st DCA 1988) )). We also note that the State makes various other arguments as to why the trial court's error was harmless, but w......