ALAN MARK LEONARD, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE

Fla. 3d DCA | 1982-12-21
No. 80-2411
Before BARKDULL and PEARSON, DANIEL S. and JORGENSON, JJ.
423 So. 2d 594 Florida District Court of Appeal, Third District (1982)

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Synopsis

Alan Mark Leonard appealed his convictions for conspiracy to commit robbery with a firearm, attempted robbery with a firearm, and second degree felony murder following a jury trial. The Florida Third District Court of Appeal affirmed the convictions and sentences, except it struck the sentence for attempted robbery with a firearm due to a double jeopardy issue.


Holding

The court affirmed the convictions and most sentences, finding no merit in Leonard's arguments regarding cross-examination, hearsay testimony, and jury instructions. However, the court struck the sentence for attempted robbery with a firearm due to a double jeopardy issue.


Headnotes

[1] An alleged error in cross-examination is generally preserved for appeal by timely objection.

[2] An alleged error regarding hearsay testimony is not preserved for appeal if no objection or motion to strike is made.

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Key Quotes

“We find no merit in this appeal and the points urged for reversal, save and except one which relates to a double jeopardy sentence.”

The court's summary rejection of most of Leonard's arguments while identifying a valid double jeopardy sentencing issue.

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Facts & Procedural History

Leonard was tried by jury and found guilty of conspiracy to commit robbery with a firearm, attempted robbery with a firearm, and second degree felony …

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Opinion of the Court
PER CURIAM.

PER CURIAM.

Appellant appeals his convictions and sentences following a jury trial, which found him guilty of conspiracy to commit robbery with a firearm, attempted robbery with a firearm and second degree felony murder. He was sentenced to 15 years imprisonment for conspiracy to commit robbery, concurrently with two 40 year terms for attempt to commit robbery and second degree murder. This appeal followed.

We find no merit in this appeal and the points urged for reversal, save and except one which relates to a double jeopardy sentence.

As to the alleged error in cross-examination, see Leonard v. State, 386 So. 2d 51 (Fla. 2d DCA 1980); Thorpe v. State, 350 So. 2d 552 (Fla. 1st DCA 1977); State v. Young, 283 So. 2d 58 (Fla. 1st DCA 1973).

As to the alleged error in regard to certain hearsay testimony, first, no objection was made to part of it and no motion to strike was made, therefore the error has not been preserved. Jalbert v. State, 95 So. 2d 589 (Fla.1957); McRae v. State, 383 So. 2d 289 (Fla. 2d DCA 1980).

As to the remainder, it at best was harmless. Ballard v. State, 323 So. 2d 297 (Fla. 3d DCA 1975); Russell v. State, 270 So. 2d 462 (Fla. 3d DCA 1972); Wells v. State, 256 So. 2d 580 (Fla. 3d DCA 1972); Section 924.-33 Florida Statutes (1975).

There is no error found in the original instructions as given and no objection was made. State v. Lowery, 419 So. 2d 621 (Fla.1982).

No error has been demonstrated in the court, upon a request from the jury for a reinstruction in regard to the degrees of homicide, by giving to the jury written instructions citing the different degrees of homicide, notwithstanding the provisions of Florida Rules of Criminal Procedure. It was apparent from the jury’s question that they had resolved the issue of guilt adversely to the defendant and were only interested in reinstruction as to what degree of homicide the defendant had committed. Henry v. State, 359 So. 2d 864 (Fla.1978); State v. Kurns, 397 So. 2d 463 (Fla. 2d DCA 1981). Further the trial court gave defense counsel every opportunity to object to the procedure followed and he declined the opportunity to make any objections and therefore we find it waived.

Wherefore the convictions, adjudications and sentences are affirmed except the sentence for attempted robbery with a firearm, which is stricken. Therefore the actions of the trial court hereunder review, except as modified as above, are affirmed.

Affirmed.


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