Thomas v. State, 75--800
| Decision Date | 02 March 1976 |
| Docket Number | No. 75--800,75--800 |
| Parties | Cecil Mack THOMAS, Appellant, v. The STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Phillip A. Hubbart, Public Defender, Bennett H. Brummer, and Karen Gottlieb, Asst. Public Defenders, for appellant.
Robert L. Shevin, Atty. Gen., and William M. Grodnick, Asst. Atty. Gen., for appellee.
Before PEARSON and NATHAN, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
Cecil Mack Thomas was charged by information with assault with intent to commit murder. He was tried by jury, found guilty and sentenced to ten years in the state penitentiary.
Briefly stated, the facts are that Thomas shot Freddy Smart in the back twice while Smart was carrying Jo Ann Myers on his shoulders near her apartment. The evidence showed that Smart had been keeping company with Jo Ann Myers for several years. Cecil Mack Thomas, the defendant, had been dating her for a few weeks. During the trial, Jo Ann Myers testified over defense counsel's objection that Thomas tried to persuade her to change her testimony:
'A. What was the conversation between me and him? I said he wanted me to change my testimony.
Q. To what?
A. To what he wanted me to say.
Q. What was that?
A. That he didn't do the shooting or in that manner. He didn't want--well, I wasn't supposed to testify to the truth. I was supposed to tell a lie.'
Defense counsel made a motion to strike this testimony which was denied.
Defendant Thomas relies on two grounds for reversal. The first is that the trial court erred in denying his motion to strike Jo Ann Myers' testimony as to the alleged inculpatory statement, quoted above, where the defendant timely filed a written demand for discovery pursuant to Rule 3.220 RCrP, and the prosecutor failed to comply and disclose such statement and the court failed to inquire into the circumstances surrounding the non-compliance and failed to determine that no prejudice was caused thereby. Rule 3.220 provides in pertinent part that within 15 days after written demand by the defendant, the prosecutor shall disclose to defense counsel the substance of any oral statements made by the accused and known to the prosecutor, together with the name and address of each witness to the statement. The rule further provides that the prosecutor is under a continuing duty to disclose. In our opinion, it was error for the court to refuse to strike the testimony as to the inculpatory statement. Viewing the record in its totality, however, considering the...
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Ali v. State, 76-1395
...exclude the statement was error, we find the error to be harmless in view of the overwhelming evidence of guilt. Cf. Thomas v. State, 328 So.2d 545, 546 (Fla.3d DCA 1976). 1 Defendant testified at the trial and denied having registered at the hotel. ...
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State ex rel. Gerstein v. Baker, 76-1720
...With the consent of the State. (Emphasis added.) 34 Fla.Stat.Ann. 38 (1975). This rule was recently interpreted by us in Thomas v. State, 328 So.2d 545 (Fla.3d DCA 1976), as we follow our holding in that decision, to-wit: the state must consent to a waiver of a jury trial sought by a We the......