EDWARD J. BOLEN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Edward Bolen was convicted of leaving the scene of an accident resulting in death. The Fourth District Court of Appeal affirmed the conviction, rejecting his arguments that prosecutorial remarks in closing argument and a jury instruction regarding knowledge of accident involvement constituted reversible error.
The court affirmed Bolen's conviction, finding that although some prosecutorial comments were improper, they were not so objectionable as to deprive defendant of a fair trial, and the jury instruction, even if erroneous, was harmless because the actual factual dispute at trial was whether Bolen knew he hit a child, not whether he knew he was in an accident.
[1] A trial court's ruling on a motion for mistrial is reviewed for an abuse of discretion.
[2] A mistrial should only be granted when there is an absolute legal necessity to do so.
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Join FLexlaw to unlock all legal intelligence“The driver of an automobile need only be aware that he was involved in an accident and with such knowledge, willfully left the scene of the accident, without fulfilling the requirement of F.S. 316.062. The driver need not know that such accident resulted in the injury or death of any person.”
The jury instruction on knowledge requirement for leaving the scene of accident that Bolen challenged as erroneous
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Join FLexlaw to unlock all legal intelligenceBolen was involved in an automobile accident that resulted in a death. At trial, Bolen testified that he thought his windshield had been struck by a r…
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ALAN R. SCHWARTZ, Associate Judge.
We reject each of Bolen’s arguments for reversal of his conviction for leaving the scene of an accident resulting in death, in violation of Section 316.027, Fla.Stat. (1977).
The defendant’s first point complains of certain remarks made by the prosecutor in final argument to the jury. The record shows that when the statements in question were made, Bolen’s counsel moved only for a mistrial, and did not either object or seek curative instructions. See Mancebo v. State, 350 So. 2d 1098 (Fla. 3d DCA 1977), cert. denied, 359 So. 2d 1217 (Fla.1978); Mabery v. State, 303 So. 369, 370 (Fla. 3d DCA 1974), cert. denied, 312 So. 2d 756 (Fla.1975). While some of the comments complained of, particularly those which referred to the absence from the trial of the boy who was killed in the accident, were indeed improper, none were so objectionable as to deprive the defendant of a fair trial and thus to require the ultimate remedy of stopping the trial and beginning again. Hence, the trial judge may not be deemed to have erred or abused his discretion in failing to grant the sole relief requested below by denying the motions for mistrial. Abbott v. State, 334 So. 2d 642, 647 (Fla. 3d DCA 1976), cert. denied, 345 So. 2d 420 (Fla.1977); Davis v. State, 281 So. 2d 551 (Fla. 3d DCA 1973), cert. denied, 289 So. 2d 734 (Fla.1974).
Bolen’s other point of substance claims error in the following portion of the charge to the jury concerning the crime involved:
The driver of an automobile need only be aware that he was involved in an accident and with such knowledge, willfully left the scene of the accident, without fulfilling the requirement of F.S. 316.062. The driver need not know that such accident resulted in the injury or death of any person. [Emphasis supplied].
In the context of this case, we need not and therefore do not decide whether we agree with the holding in State v. Moss, 206 So. 2d 692 (Fla. 2d DCA 1968), which squarely supports this instruction. This is so because the only real question at the trial was whether, at the time of the accident, Bolen thought, as he testified, that his windshield had been struck by a rock which had been thrown at his car; or whether, as the state’s witnesses stated (and as the jury obviously found), that he knew — and had stated— that he had “hit a kid on a bike.” There was no issue or contention whatever as to the subject matter of the challenged instruction — the possibility and legal consequences of Bolen’s knowing he had been in an accident but not that an injury or death was involved. Therefore, it affirmatively appears that any error which arguendo occurred with regard to this point could not have been harmful. Section 924.33, Fla. Stat. (1977); see National Car Rental System, Inc. v. Holland, 269 So. 2d 407, 411 (Fla. 4th DCA 1972), cert. denied, 273 So. 2d 768 (Fla.1973).
AFFIRMED.
DOWNEY, C. J., and ANSTEAD, J., concur.
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Williams v. State, 400 So. 2d 542 (Fla. 3d DCA 1981)…keep it.”); Hamilton v. State, 152 So. 2d 793 (Fla. 2d DCA 1963), cert. denied, 156 So. 2d 388 (Fla.1963) (failure to define excusable homicide, where evidence “did not bespeak a basic necessity requiring ... instruction”); see also, Bolen v. State, 375 So. 2d 891 (Fla. 4th DCA 1979) (unnecessary to consider propriety of charge concerning essential element of crime; no more than harmless error involved because “there was no issue or contention whatever as to the subject matter of the challenged instruction”);…
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Gonzalez v. State, 511 So. 2d 703 (Fla. 3d DCA 1987)…ant’s motion for mistrial, which was the only relief sought below, be granted. See Duest v. State, 462 So. 2d 446 (Fla.1985); Palmer v. State, 486 So. 2d 22 (Fla. 1st DCA 1986); Williams v. State, 443 So. 2d 1053 (Fla. 1st DCA 1984); Bolen v. State, 375 So. 2d 891 (Fla. 4th DCA 1979); Mabery v. State, 303 So. 2d 369 (Fla. 3d DCA 1974), cert. denied, 312 So. 2d 756 (Fla.1975). Since there was no request for a curative instruction, which would have been the appropriate remedy for the ailment in question—and whi…
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Worthey v. State, 395 So. 2d 1210 (Fla. 3d DCA 1981)…— of which the defendant was impliedly acquitted4 — -was not only not fundamental error, but was affirmatively shown to have been harmless.5 Section 924.33, Florida Statutes (1979); James v. State, 393 So. 2d 1138 (Fla. 3d DCA 1981); Bolen v. State, 375 So. 2d 891 (Fla. 4th DCA 1979). Affirmed. . Compare Hodge v. State, 393 So. 2d 1188 (Fla. 3d DCA 1981), in which the issue was properly preserved, and the defendant’s conviction of robbery was therefore reversed. . We similarly did not directly pass upon th…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited (11 total)
- Dalton Abbott v. State, 334 So. 2d 642 (Fla. 3d DCA 1976)
- Nat'l CAR Rental Sys., Inc. v. Holland, 269 So. 2d 407 (Fla. 4th DCA 1972)
- Mancebo v. State, 350 So. 2d 1098 (Fla. 3d DCA 1977)
- Davis v. State, 281 So. 2d 551 (Fla. 3d DCA 1973)
- State v. Moss, 206 So. 2d 692 (Fla. 2d DCA 1968)
- House OF Prime Ribs, Inc. v. Lorraine Maier & the State of Fla. Dep't of Commerce, 273 So. 2d 768 (Fla. 1973)
- Nat'l CAR Rental Sys., Inc. v. Holland, 273 So. 2d 768 (Fla. 1973)
- Groves v. JAX Liquors, Inc., 312 So. 2d 756 (Fla. 1975)
- Mabery v. State, 312 So. 2d 756 (Fla. 1975)
- Giffen Indus. OF Orlando & Emp'rs Ins. of Wausau v. Campbell, 289 So. 2d 734 (Fla. 1974)