ROBERT WALTER BRITTON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that allowing rebuttal testimony, even if not strictly rebuttal, was not error if the evidence was admissible in the case in chief and the trial court properly handled any hearsay issues.
The appellant contended that the state's rebuttal witness testimony was improper and cumulative. The witness's testimony neither explained nor contrad…
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COBB, Judge.
The appellant, Britton, contends that the court below erred by allowing the state to call a witness in rebuttal. He argues the witness’ testimony was both improper rebuttal and cumulative.
Rebuttal evidence explains or contradicts material evidence offered by a defendant. Kirkland v. State, 86 Fla. 64, 97 So. 502 (1923). See also Dornau v. State, 306 So. 2d 167 (Fla.2d DCA 1974), cert. denied, 422 U.S. 1011, 95 S.Ct. 2636, 45 L.Ed.2d 675 (1975). The testimony delivered by the state’s rebuttal witness neither explained nor contradicted any evidence offered by Britton. Permitting the testimony, however, was not error: the order of presentation of evidence and witnesses is largely a function of the trial court’s discre tion; this discretion is broad enough to allow the state to introduce, after the defendant’s case, evidence not strictly in rebuttal, so long as the evidence was admissible in the main case. Williamson v. State, 92 Fla. 980, 111 So. 124, 53 A.L.R. 250 (1926); Davis v. State, 44 Fla. 32, 32 So. 822 (1902). See also 23 C.J.S. Criminal Law § 1045 (1961). Because the trial court properly eliminated a hearsay problem in the proffered testimony, the testimony presented to the jury was admissible in the state’s case in chief. Therefore, the court did not err by permitting the “rebuttal” testimony.
As for Britton’s argument that the testimony was unnecessarily cumulative, it is not error to permit a state witness to testify after the defense has rested, even if the evidence is merely cumulative, in the absence of the defendant’s showing injustice amounting to an abuse of discretion. Williamson, 111 So. at 126-27; Driscoll v. Morris, 114 So. 2d 314 (Fla. 3d DCA 1959). Britton has failed to demonstrate such prejudice.
The judgment1 below is
AFFIRMED.
SHARP and COWART, JJ., concur. . Britton has yet to be sentenced.
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Gutierrez v. Jose Luis Vargas, M.D., 239 So. 3d 615 (Fla. 2018)
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Register v. State, 718 So. 2d 350 (Fla. 5th DCA 1998)…trial court is vested with discretion as to the order of proof during a trial in order to “[fjacilitate ... the discovery of the truth ...” and “[ajvoid needless consumption of time.” § 90.612(l)(a)-(b), Fla. Stat. (1993); see also Britton v. State, 414 So. 2d 638, 639 (Fla. 5th DCA 1982). As a result, a defendant is not automatically entitled to reopen his case simply because he changes his mind and decides to introduce additional evidence. Rather, in moving to reopen his case, a defendant has the burden to…
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Pitts v. State, 473 So. 2d 1370 (Fla. 1st DCA 1985)…witness. Whether the testimony of a particular witness is cumulative or proper, rebuttal is an area where the trial court must have broad discretion, and, in the absence of clear and harmful error, the ruling will be affirmed. See Britton v. State, 414 So. 2d 638 (Fla. 5th DCA 1982). No abuse of discretion appears on the record. The fourth point concerns the admission over objection of evidence, which we hold to have been prejudicial error. The State called as a witness a captain with the Alachua County She…
Previewing 3 of 13 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Davis v. State, 44 Fla. 32 (Fla. 1902)
- Lanier v. Dell H. Huckeby, 92 Fla. 980 (Fla. 1926)
- Kirkland v. State, 86 Fla. 64 (Fla. 1923)
- Driscoll v. Morris, 114 So. 2d 314 (Fla. 3d DCA 1959)
- Chavez v. New Mexico, 422 U.S. 1011 (U.S. 1975)
- Hayward v. Johnson, 422 U.S. 1011 (U.S. 1975)
- Dornau v. State, 306 So. 2d 167 (Fla. 2d DCA 1974)