ROLANDO BARBON-ZURITA, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Rolando Barbon-Zurita was convicted of second-degree murder and firearm offenses after a joint trial with a co-defendant. He appealed, challenging the denial of his motion to sever tried during trial, but the court affirmed because he had earlier stipulated to a joint trial despite knowing the defenses would be antagonistic.
The trial court did not err in denying the untimely severance motion because the defendant intentionally relinquished his known right to severance through his pre-trial stipulation to a joint trial, which constitutes an intentional abandonment of that right as a matter of trial strategy and does not constitute a due process violation.
[1] A defendant waives the right to severance by entering into a stipulation for a joint trial, even if defenses are antagonistic.
[2] A motion for severance made during trial is untimely when the defendant previously stipulated to a joint trial and was aware of antagonistic defenses.
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Join FLexlaw to unlock all legal intelligence“We conclude the trial court did not err in denying defendant's untimely motion for severance, nor is there a due process violation where there has been an intentional relinquishment of a known right or privilege.”
Establishes the core holding that a defendant who stipulates to joint trial cannot later claim error or due process violation by seeking severance.
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Join FLexlaw to unlock all legal intelligenceBarbon-Zurita and a co-defendant were charged with second-degree murder, unlawful firearm possession while engaged in criminal offense, and carrying a…
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JORGENSON, Judge.
Rolando Barbon-Zurita and a co-defendant 1 were charged with second degree murder, unlawful possession of a firearm while engaged in a criminal offense and carrying a concealed firearm. Barbon-Zurita was convicted of all three counts, following a jury trial. It is that judgment and sentence from which he appeals. We affirm.
Prior to trial, both defendants filed motions to sever, which the State initially resisted. Thereafter, and still prior to jury selection, the State conceded the motions to sever were well-taken. Notwithstanding the State’s concession, the defendant entered into a pre-trial stipulation with the State and co-defendant for a joint trial and, in so doing, acknowledged that the defenses would, in all likelihood, be antagonistic. Following the stipulation, a jury was selected and opening statements were made. Counsel for Barbon-Zurita then again moved for severance in light of the opening statements re-alleging, as a basis for the severance, that the defenses were antagonistic and that Barbon-Zurita would be denied due process if the new motion for severance were not granted.
We conclude the trial court did not err in denying defendant’s untimely motion for severance, nor is there a due process violation where there has been an intentional relinquishment of a known right or privilege. Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938); Fla.R.Crim.P. 3.153.
Appellant’s reliance on Crum v. State, 398 So. 2d 810 (Fla.1981) is misplaced. In Crum, our Supreme Court concluded that the test for appellate review of a trial court’s discretionary ruling is whether or not the trial court abused its discretion. Crum at 811. Furthermore, there is no demonstration by Barbon-Zurita that the new motion for severance was based on facts which were not known before trial. Appellant was fully aware of the antagonistic defenses and the only surprise was the level of advocacy employed by counsel for the co-defendant. Barbon-Zurita knew full well that co-defendant would be accusing him and that he, likewise, would be accusing the co-defendant.
Where, as here, a defendant intentionally abandons his right to a severance as a matter of “trial strategy,” no error is demonstrated, Johnson v. Zerbst, supra, 304 U.S. at 464, 58 S.Ct. at 1023, and a new motion made during trial will be deemed untimely, Fla.R.Crim.P. 3.153.
We have examined the other issues presented and conclude that they are without merit. Accordingly, the judgment and sentence are affirmed.
. Not a party to this appeal.
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Barbon-Zurita v. State, 471 So. 2d 648 (Fla. 3d DCA 1985)…PER CURIAM. Affirmed. Barbon-Zurita v. State, 415 So. 2d 824 (Fla. 3d DCA 1982).…
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Hernandez v. State, 570 So. 2d 404 (Fla. 2d DCA 1990)…fore trial, although the defense may have had an indication that the state might attempt to introduce the collateral evidence.1 Nor is there any evidence here that Hernandez intentionally abandoned his right to severance. See Barbon-Zurita v. State, 415 So. 2d 824 (Fla. 3d DCA 1982). To the contrary, immediately after the state sought to introduce this prejudicial evidence about the codefendant, Hernandez made continued attempts to obtain severance. A motion for severance should be granted if there is eviden…
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Arocha v. State, 425 So. 2d 186 (Fla. 3d DCA 1983)…PER CURIAM. Appellant and a codefendant were convicted of second-degree murder. The code-fendant’s conviction was affirmed. Barbon-Zurita v. State, 415 So. 2d 824 (Fla. 3d DCA 1982). The contentions here are (1) the trial court should have modified a pretrial stipulation and declared a mistrial, sua sponte, when injustice became apparent, (2) the court’s denial of appellant’s request that counsel for codefend…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Johnson v. Zerbst, 304 U.S. 458 (U.S. 1938)
- Crum v. State, 398 So. 2d 810 (Fla. 1981)