WALTER FRANKLIN SAULSBERRY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
The court held that the appellant sufficiently preserved for appeal the trial judge's error in refusing a required jury instruction.
Appellant requested a jury instruction, objected to its denial after an unrecorded conference but before the jury charge, and the trial court refused …
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Motion For Mistrial cases and more on FLexlaw
DAUKSCH, Chief Judge.
The principal question for us to resolve in this appeal is whether the appellant sufficiently reserved for appeal the error of the trial judge in refusing to give the penalties instruction as required by Rule 3.390(a), Florida Rules of Criminal Procedure and Tascano v. State, 393 So. 2d 540 (Fla.1980).
The sequence of events is that appellant requested the instruction at an unrecorded instructions conference, the appellant put his objection on the record after the conference but before the charge to the jury but did not object to the failure of the court to give the instruction after the jury charge and before deliberations began. We deem the objection to have preserved the question for appeal.
Because our Supreme Court has required all cases which fall within the Tascano decision to be retried, we must reverse the conviction and remand this matter for a new trial.
While we deem the evidence in this case to be quite sufficient to convict the appellant thereby rendering the Tascano error to be really harmless, as in Gee v. State, 400 So. 2d 466 (Fla.5th DCA 1981), another error would cause us to reverse for a new trial, anyway.
The prosecutor during voir dire of the jury set forth for the jurors a hypothetical question which essentially embodied the facts of the case against the accused, thus attempting to, and probably succeeding in, obtaining at least a tacit commitment from the jurors to convict. This is wrong and the trial judge should have granted the timely motion for mistrial. Dicks v. State, 83 Fla. 717, 93 So. 137 (1922).
REVERSED AND REMANDED.
ORFINGER and FRANK D. UP-CHURCH, Jr., JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Carpenter v. State, 785 So. 2d 1182 (Fla. 2001)…where charge conference colloquy indicated that defense counsel preserved objection to the trial court’s failure to give requested instructions); see also Hubbard v. State, 411 So. 2d 1312, 1314-15 (Fla. 1st DCA 1981) (en banc); Saulsberry v. State, 398 So. 2d 1017, 1017-18 (Fla. 5th DCA 1981). It is clear that defense counsel satisfied the requirements of Florida Rule of Criminal Procedure 3.390(d)13 by objecting during the charge conference and specifically advising the trial court of the basis for the objec…
-
Peri v. State, 426 So. 2d 1021 (Fla. 3d DCA 1983)…d DCA 1977). The materiality and propriety of voir dire questions are to be decided by the judge. Pait v. State, 112 So. 2d 380 (Fla.1959); Story v. State, 53 So. 2d 920 (Fla.1951); Pope v. State, 84 Fla. 428, 94 So. 865 (1922); Saulsberry v. State, 398 So. 2d 1017 (Fla. 5th DCA 1981); Gibbs v. State, 193 So. 2d 460 (Fla. 2d DCA 1967). It is the judge who controls the time and extent of the voir dire, Blackwell v. State, 101 Fla. 997, 132 So. 468 (1931); Barker v. Randolph, 239 So. 2d 110 (Fla. 1st DCA 1970),…
-
Hubbard v. State, 411 So. 2d 1312 (Fla. 1st DCA 1981)…o this point is not preserved for our determination. Holland v. State, 400 So. 2d 767, No. WW-55 (Fla. 1st DCA opinion filed April 10, 1981) [1981 F.L.W. 860], But see Williams v. State, 399 So. 2d 999 (Fla. 3rd DCA 1981), n. 6; Saulsberry v. State, 398 So. 2d 1017 (Fla. 5th DCA 1981). Accordingly, judgment of the trial court is AFFIRMED. ROBERT P. SMITH, Jr., C. J., and LARRY G. SMITH and JOANOS, JJ., concur. . The prohibitions against ex post facto laws, U.S. Const. Art. I, § 10, Fla.Const. Art. I, § 10,…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Tascano v. State, 393 So. 2d 540 (Fla. 1980)
- Dicks v. State, 83 Fla. 717 (Fla. 1922)
- GEE v. State, 400 So. 2d 466 (Fla. 5th DCA 1981)