Tobler v. State, FF-438

• Decision Date: 01 February 1979
• Docket Number: No. FF-438,FF-438
• Citation: 371 So.2d 1043
• Parties: Bruce Stanley TOBLER, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 1043

371 So.2d 1043

Bruce Stanley TOBLER, Appellant, v. STATE of Florida, Appellee.

No. FF-438.

District Court of Appeal of Florida, First District.

Feb. 1, 1979.

Rehearing Denied March 12, 1979.

Bruce Stanley Tobler, pro se, Michael J. Minerva, Public Defender, for appellant.

Robert L. Shevin, Atty. Gen., Wallace E. Allbritton, Asst. Atty. Gen., for appellee.

McCORD, Chief Judge.

This appeal is from conviction of appellant of three counts of burglary and two counts of grand larceny. (See Tobler v. State, 350 So.2d 555 (Fla. 1 DCA 1977).) We affirm the convictions but remand for reconsideration of the trial court's nonallowance of jail time credit in this case.

At trial, the State put into evidence a written confession given by appellant to a detective. Other evidence presented by the State corroborated this confession. Appellant presented no evidence at trial. During closing argument, appellant's attorney attacked the reliability of the confession and claimed that it was coerced. In rebuttal, the prosecutor remarked:

"There has been no evidence that what the defendant wrote here is not the truth. . . . The defense counsel says the defendant was coached, but not once did he say its not true, that it's a lie, that it's not his handwriting, that he didn't write it."

Appellant's counsel objected to those remarks claiming they were a comment upon appellant's right not to testify. The trial judge then remarked as follows:

"THE COURT: What do you want? I mean, I understand what you are saying, but what are you moving for?

MR. BETANCOURT: Your Honor, I want to record my objection.

THE COURT: Just as an objection?

MR. BETANCOURT: Yes, Your Honor, realizing what was said."

The court overruled the objection.

Appellant first argues that the above-mentioned prosecutorial comment in closing argument constitutes reversible error. Regardless of whether or not that comment does constitute error, appellant has failed to preserve his point for appeal. See Clark v. State, 363 So.2d 331 (Fla.1978), in which the court ruled:

"When there is an improper comment, the defendant, if he is offended, has the obligation to object and to request a mistrial. If the defendant does not want a mistrial, he may waive his objection. The trial may then proceed, but he may not again raise that objection as a point on appeal. If the defendant fails to object or if, after having objected, he does not ask for a mistrial, his silence will be considered an implied waiver. . . ."

Two of the burglary convictions involved the alleged breaking and entering by appellant and three others of the grounds of a May-Cohen's warehouse and their further breaking and entering of a trailer parked on the grounds where they allegedly took $9,000 worth of merchandise. The breaking into the grounds was accomplished by cutting the lock off of the gate to a fence surrounding the warehouse and, after entering the grounds, the breaking into the trailer was accomplished by cutting the door off the trailer.

As to these two burglaries, appellant argues that entry into the mere curtilage of a business premises is not sufficient to constitute the offense of burglary of the structure located on those premises when entry is made only into a conveyance also located within the...