DAVID BALDWIN, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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David Baldwin appeals his convictions for armed robbery, firearm possession during robbery, and felon in possession of a firearm. The appellate court affirms all convictions, rejecting Baldwin's arguments regarding an improper police witness comment about his Fifth Amendment silence and his claim that the court failed to inform him of sentencing consequences when waiving counsel.
The court held that: (1) the defendant's failure to preserve the issue through a contemporaneous objection and motion for mistrial, combined with his withdrawal of the initial objection after consulting counsel, precluded appellate review despite pro se status; and (2) it was not a necessary predicate to a valid waiver of counsel that the court inform the defendant of the court's potential retention of sentencing jurisdiction, as the court properly discharged its duty to inform him of the general dangers and disadvantages of self-representation.
[1] A defendant must preserve an improper comment by a witness regarding the exercise of the Fifth Amendment right to remain silent by making a contemporaneous objection and…
[2] The fact that a defendant proceeds pro se with appointed counsel available does not alter the requirement of a contemporaneous objection to preserve an issue for review.
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Join FLexlaw to unlock all legal intelligence“appellant failed to preserve for review, by a contemporaneous objection and motion for mistrial, an allegedly improper comment by a police officer witness regarding his exercise of his Fifth Amendment right to remain silent following his arrest and Miranda warnings”
Establishes the preservation doctrine requirement for appellate review of trial errors.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceDavid Baldwin was convicted of armed robbery, possession of a firearm during commission of robbery, and possession of a firearm by a convicted felon. …
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HENDRY, Judge.
David Baldwin appeals his conviction and sentences for armed robbery, possession of a firearm during commission of the robbery,1 and possession of a firearm by a convicted felon.
We affirm as to both issues raised on appeal.
First, appellant failed to preserve for review, by a contemporaneous objection and motion for mistrial, an allegedly improper comment by a police officer witness regarding his exercise of his Fifth Amendment right to remain silent following his arrest and Miranda warnings. Clark v. State, 363 So. 2d 331 (Fla.1978).
The fact that the defendant was allowed to proceed pro se at trial, with counsel appointed to assist him, as needed, does not change this result where the record is clear that the appellant almost immediately objected to the testimony, then withdrew the objection after he had consulted with the assisting attorney. Cf. McClain v. State, 353 So. 2d 1215 (Fla. 3d DCA 1977), cert. denied, 367 So. 2d 1126 (Fla.1979) (in case where trial judge had not made sufficient inquiry whether defendant’s waiver of counsel was intelligent and competent, improper comment by trial judge during pro se defendant’s closing argument, regarding defendant’s failure to testify, impelled reversal despite absence of objection or motion for mistrial).
Second, it was not a necessary predicate to a valid waiver of counsel that the court inform the defendant at the time he made his waiver that the court might lawfully retain jurisdiction over the first one-third of his sentence. The record demonstrates that the court properly discharged its duty to inform the defendant of the dangers and disadvantages of self-representation, so as to enable him to knowingly and intelligently waive his right to counsel. Faretta v. California, 422 U.S. 806, 835, 95 S.Ct. 2525, 2541, 45 L.Ed.2d 562, 581-82 (1975); Smith v. State, 407 So. 2d 894, 900 (Fla.1981), cert. denied, 456 U.S. 984, 102 S.Ct. 2260, 72 L.Ed.2d 864 (1982); Goode v. State, 365 So. 2d 381, 384 (Fla.1978), cert. denied, 441 U.S. 967, 99 S.Ct. 2419, 60 L.Ed.2d 1074 (1979).
Affirmed.
. Entry of sentence was suspended on the conviction for possession of a firearm during commission of the robbery.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Faretta v. California, 422 U.S. 806 (U.S. 1975)
- Clark v. State, 363 So. 2d 331 (Fla. 1978)
- Federated Publ'ns, Inc. v. Swedberg, 456 U.S. 984 (U.S. 1982)
- Jacks v. Duckworth, 456 U.S. 984 (U.S. 1982)
- Smith v. State, 407 So. 2d 894 (Fla. 1981)
- Goode v. State, 365 So. 2d 381 (Fla. 1978)
- Ill. Off. of Educ. v. Jennings, 441 U.S. 967 (U.S. 1979)
- Von Byrd v. Texas, 441 U.S. 967 (U.S. 1979)
- Theodis McCLAIN v. State, 353 So. 2d 1215 (Fla. 3d DCA 1977)