SALVADOR AROCHA, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Appellant Arocha and a codefendant were convicted of second-degree murder after a joint trial. Arocha appealed arguing the trial court should have declared a mistrial due to alleged breach of a pretrial stipulation, that his right to remain silent was violated, and that the evidence was insufficient. The appellate court affirmed the conviction, finding no preserved error and no merit to the sufficiency challenge.
The court affirmed the conviction, holding that: (1) the breach of the stipulation was not properly preserved for review because appellant failed to make a contemporaneous objection; (2) the trial court was not required to grant a mistrial sua sponte where appellant neither moved for severance nor sought a mistrial, having actually opposed separate trials; and (3) the sufficiency of the evidence challenge was without merit.
[1] A claim that a pretrial stipulation was breached and required a mistrial is not preserved for appellate review if no contemporaneous objection was made when the alleged b…
[2] A defendant who objects to a motion for severance during trial cannot later complain that the trial court should have granted a mistrial sua sponte due to the joint trial…
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Join FLexlaw to unlock all legal intelligence“there was not a contemporaneous objection when the comment was made, thus, the point has not been properly preserved for appellate review”
Establishes that the alleged breach of the stipulation was not preserved for review due to lack of contemporaneous objection
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Join FLexlaw to unlock all legal intelligenceAppellant Arocha and a codefendant were tried jointly for second-degree murder pursuant to a pretrial stipulation. The stipulation allowed either defe…
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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 codefendant be instructed to refrain from commenting on the fact that appellant had not testified effectively penalized appellant for exercising his right to remain silent, (3) appellant’s motion for judgment of acquittal should have been granted where the proof of intent to commit murder rested solely upon circumstantial evidence.
The parties entered into a stipulation for a joint trial with the following condition:
[Appellant’s counsel] “. .. should one of the defendants testify and the other one not testify, that the defendant that testifies may bring to the attention of the jury that he did, in fact, testify, although the attorneys are agreeing that they will not point the finger to the other defendant and say he did not testify.”
Appellant argues that the codefendant breached the terms of the agreement by making a direct comment on his decision to not take the witness stand. Even if we could agree, there was not a contemporaneous objection when the comment was made, thus, the point has not been properly preserved for appellate review. Clark v. State, 363 So. 2d 331, 335 (Fla.1978); Simpson v. State, 418 So. 2d 984 (Fla.1982). Nor will appellant be heard to complain that the trial court should have granted a mistrial, sua sponte, where he not only failed to move for a severance but objected to a state motion, made during trial, that the two defendants be tried separately. See Barbón-Zurita v. State. The third point, which challenges the sufficiency of the evidence, is totally without merit.
Affirmed.
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Citator
Cited By
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Arocha v. State, 555 So. 2d 404 (Fla. 3d DCA 1989)…, 511 So. 2d 984 (Fla.1987); Vause v. State, 476 So. 2d 141 (Fla.1985); See Clark v. State, 530 So. 2d 519 (Fla. 5th DCA 1988); Marshall v. Dugger, 526 So. 2d 143 (Fla. 3d DCA 1988); Paez v. State, 512 So. 2d 263 (Fla. 3d DCA 1987); Arocha v. State, 425 So. 2d 186 (Fla. 3d DCA 1983); Jakubczak v. State, 425 So. 2d 187 (Fla. 3d DCA 1983).…
Authorities Cited
- Clark v. State, 363 So. 2d 331 (Fla. 1978)
- Simpson v. State, 418 So. 2d 984 (Fla. 1982)
- Barbon-Zurita v. State, 415 So. 2d 824 (Fla. 3d DCA 1982)
- Flemming v. State, 415 So. 2d 824 (Fla. 3d DCA 1982)