ALBERT JAY KETROW, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Albert Jay Ketrow appeals his grand theft conviction, claiming the trial court erroneously excluded his hearsay testimony about his boss's instructions to take a construction trailer. The appellate court affirmed the conviction, finding that Ketrow failed to preserve the issue through a proper proffer of evidence and that any error would be harmless.
The court affirmed the conviction on two grounds: first, Ketrow failed to properly preserve the issue by not making a proffer of the excluded testimony, which prevents appellate review; second, even if preserved, any error would be harmless because Ketrow was able to present his version of events to the jury through other testimony.
[1] Failure to make a proffer of excluded evidence prevents appellate consideration of the alleged error.
[2] An appellate court cannot speculate on the content or effect of excluded evidence when no proffer was made at trial.
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Join FLexlaw to unlock all legal intelligence“It is clear that failure to make a proffer of evidence which would demonstrate that the proposed evidence was improperly excluded prevents appellate consideration or acceptance of the point.”
Establishes the procedural rule that proper preservation through a proffer is required for appellate review of evidentiary rulings.
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Join FLexlaw to unlock all legal intelligenceKetrow took a construction trailer from a building site and brought it to a vacant lot where it was looted and partially dismantled. The owner of the …
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OTT, Judge.
Appellant, Albert Jay Ketrow, appeals his •conviction by jury for grand theft in violation of section 812.014(2)(b)l, Florida Statutes (1981). Ketrow was sentenced to three years imprisonment.
Evidence in the record indicates that Ket-row absconded with a construction trailer from a building site. The trailer was taken to a vacant lot where it was looted and partially dismantled. The owner of the vacant lot testified that he had given Ketrow permission to park a trailer on the lot for a few weeks because Ketrow’s truck was in the garage.
Ketrow’s defense at trial was that he had taken the trailer only because his boss had instructed him to do so. During direct examination Ketrow attempted to testify concerning what his boss had told him about the trailer. The testimony was objected to on hearsay grounds, and the court sustained the objection. No proffer was made.
Ketrow now argues that the trial court committed reversible error by refusing to let him testify to what his boss had said concerning the stolen trailer. However, Ketrow has not properly preserved this point on appeal, and we are therefore excluded from considering the merits. Specifically, Ketrow’s counsel failed to proffer his intended testimony. It is clear that failure to make a proffer of evidence which would demonstrate that the proposed evidence was improperly excluded prevents appellate consideration or acceptance of the point. Cason v. Smith, 365 So. 2d 1042 (Fla. 3d DCA 1978); City of Hialeah v. Revels, 123 So. 2d 400 (Fla. 3d DCA 1960). While the consequences of this rule are harsh, we feel it is necessary to ordered justice and prevents an appellate panel from speculating as to what someone might have said or what some document might have contained, as well as what effect, if any, it may have had on the result.
Assuming arguendo that the point had been properly preserved, undoubtedly it would be mired in the harmless error doctrine. A reading of the transcripts indicates that Ketrow was successful in getting his version of the story before the jury. The record reflects, through the testimony of a police officer, that appellant was told by his boss to pick up the trailer. Similarly, before the specific conversation between Ketrow and his boss was objected to, Ket-row was allowed to assert that he had been sent by his boss to pick up the trailer. The jury did not believe that such was the case.
Accordingly, the adjudication of guilt and sentence is AFFIRMED.
HOBSON, A. C. J., and SCHOONOVER, J., concur.
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Finney v. State, 660 So. 2d 674 (Fla. 1995)…rial court improperly excluded testimony). Without a proffer it is impossible for the appellate court to determine whether the trial court’s ruling was erroneous and if erroneous what effect the error may have had on the result. See Ketrow v. State, 414 So. 2d 298 (Fla. 2d DCA 1982). Moreover, Finney never questioned the validity of the prior conviction and, as the trial court noted, it is not appropriate to go behind the jury’s verdict in the prior case and attempt to retry those convictions. In any event, n…
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Baker v. State, 71 So. 3d 802 (Fla. 2011)…offer it is impossible for the appellate court to determine whether the trial court’s ruling was erroneous and if erroneous what effect the error may have had on the result.” Finney v. State, 660 So. 2d 674, 684 (Fla.1995); see also Ketrow v. State, 414 So. 2d 298, 299 (Fla. 2d DCA 1982) (explaining that the rule requiring a [*817] proffer of proposed evidence “prevents an appellate panel from speculating as to what someone might have said or what some document might have contained, as well as what effect, if…
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Garfield James Woodson v. State, 483 So. 2d 858 (Fla. 5th DCA 1986)…se counsel did not proffer to the court what the content of the witness’ testimony was going to be concerning the officer’s reputation, we do not think this error was preserved on appeal. Whitted v. State, 362 So. 2d 668 (Fla.1978); Ketrow v. State, 414 So. 2d 298 (Fla. 2d DCA 1982); Llanos v. State, 401 So. 2d 848 (Fla. 5th DCA 1981). Section 90.104 of the Evidence Code provides: (1) A court may predicate error, set aside or reverse a judgment, or grant a new trial on the basis of admitted or excluded evide…
Previewing 3 of 10 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Royal Carraway v. Revell, 123 So. 2d 400 (Fla. 1st DCA 1959)
- Johnson Cason and Christine Cason v. Smith, 365 So. 2d 1042 (Fla. 3d DCA 1978)
- City OF Hialeah v. Revels, 123 So. 2d 400 (Fla. 3d DCA 1960)