DORMAN E. PERKINS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that the trial court did not err in refusing a specialized jury instruction on the defense of authorization because the standard jury instructions adequately covered the defense.
[1] A defendant is entitled to a jury instruction on any valid defense supported by the evidence, but a specialized instruction is not required if the defense is adequately c…
[2] The elements of uttering a forged instrument, including knowledge of falsity and intent to defraud, necessarily negate a defense of authorization.
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Join FLexlaw to unlock all legal intelligenceAppellant was convicted of uttering forged checks. He argued that the trial court erred by refusing to give a specific jury instruction regarding his …
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OTT, Acting Chief Judge.
A jury convicted appellant of three counts of uttering a forged check. On appeal, he raises three points. For the reasons stated below, we affirm.
First, appellant argues that the trial court erred in refusing his requested instruction on his defense of authorization. A defendant is entitled to have the jury properly instructed on any valid defense supported by the evidence. Palmes v. State, 397 So. 2d 648 (Fla.1981). See also Corujo v. State, 424 So. 2d 43 (Fla. 2d DCA 1983). Obviously, authorization to sign another’s name is a valid defense to uttering a forged instrument. See Barker v. State, 78 Fla. 477, 83 So. 287 (1919). See also 36 Am.Jur.2d Forgery § 42 (1968). In Barker, the trial court refused to give the requested instruction on the defense of authorization. Our supreme court reversed, pointing out that this defense was not covered in the other instructions given by the court. 78 Fla. at 483, 83 So. at 289.
Here, the appellant requested essentially the same instruction that was denied in Barker,1 Unlike Barker, however, we find that the trial court’s instruction to the jury covered this defense. The trial court instructed the jury that the state had to prove beyond a reasonable doubt that: 1) appellant passed or offered to pass as true a check, 2) appellant knew the check was false or forged, and 3) appellant intended to injure or defraud some person or firm. The second and third elements of the offense would necessarily negate any defense of authorization. If the jury had believed the appellant had authority to write the check, it could not find the state had proven a crime.
We conclude, therefore, that this defense was adequately and fairly presented to the jury in the trial court’s instruction, and that it was not error to refuse the specialized instruction requested by the appellant. Mathew v. State, 209 So. 2d 234 (Fla. 2d DCA 1968).
In so ruling, we note that the trial court refused to give appellant’s requested in struction, which is specialized and requires comment on the evidence. Instead, the trial court gave the standard jury instruction used in criminal cases. See Fla.Std.Jury Instr. (Crim.) (pp. 12-15, 23-24, 29, 168) (1981 ed.). This is the correct practice as the standard jury instructions were designed to cover all aspects and elements of the statutory offense, and to avoid unnecessary comment on the evidence.
Next, appellant argues that the trial court erred in denying his motion for mistrial based upon prosecutorial impropriety. The record does not reveal any remarks by the prosecutor about defense counsel that would require a mistrial. See generally Briggs v. State, 455 So. 2d 519 (Fla. 1st DCA 1984).
Finally, the appellant argues that the trial court erred in denying his motion for a mistrial based upon the prosecutor’s remark on appellant’s invocation of his Miranda rights. Appellant invited the rebuttal by arguing to the jury that he (appellant) had not made any prior inconsistent statements, when appellant had, in fact, exercised his right to remain silent and made no statement at all.2 The trial court was correct in denying the appellant’s motion for a mistrial where the prosecutor “rose to the bait” east by the appellant. See Brown v. State, 367 So. 2d 616, 625 (Fla.1979).
Appellant’s conviction and sentence are affirmed.
AFFIRMED.
DANAHY and SCHOONOVER, JJ„ concur. . The appellant requested the following instruction:
There was evidence presented to you to the effect that the Defendant, DORMAN EDWARD PERKINS, was authorized to sign the name of HERBERT D. RALEY in each of the cases being tried before you. I charge you that such evidence may be a defense to the charges pending before you. If you believe that the Defendant was given such authority. i.e., that HERBERT D. RALEY's signature was affixed to the checks with his knowledge and/or consent, you should find the Defendant Not Guilty.
Or, in the event that you have a reasonable doubt that MR. RALEY authorized the Defendant to write the checks, you should give the Defendant the benefit of this doubt and find him Not Guilty.
. The following exchange occurred before the jury:
MR. MIELE (Defense Attorney): In short— in conclusion, rather, you’ll find that’s put in before you that the defendant has always had the same position — the same position. He has never changed position. The State Attorney will want you to believe that, oh, yeah, after the — after he was found out, then he says, yes I did this, this, this, and this. Okay. That’s not so. They haven’t produced one witness, which is generally what they want to do, their habit of doing, that shows he’s made any inconsistent statements prior to this or any denials before you.
MR. YOUNG (Prosecutor): Judge, he knows .full well the defendant invoked his Miranda rights.
THE COURT: Let’s not get into that.
MR. MIELE: Objection, objection, objection, objection, Judge. Your Honor, a mistrial.
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Smith v. State, 501 So. 2d 139 (Fla. 2d DCA 1987)…tempted first degree murder. After reviewing the record and applicable case law, we find that the trial court did not err in denying appellant’s requested special jury instruction on the definition of “sudden passion.” See, e.g., Perkins v. State, 463 So. 2d 481 (Fla. 2d DCA 1985). We further find that there are sufficient facts in the record to support the trial court’s denial of appellant’s motion for directed verdict. See, e.g., Prather v. State, 182 So. 2d 273 (Fla. 2d DCA 1966). Accordingly, we affirm…
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Delgado v. State, 619 So. 2d 1016 (Fla. 3d DCA 1993)…PER CURIAM. Affirmed. See Perkins v. State, 463 So. 2d 481 (Fla. 2d DCA1985); Walker v. State, 428 So. 2d 321 (Fla. 1st DCA1983).…
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Weyrauch v. State, 637 So. 2d 953 (Fla. 4th DCA 1994)…trial courts are not absolutely required to use the standard jury instructions, the standards are generally preferred. Cruse v. State, 588 So. 2d 983, 989 (Fla.1991), cert. denied, — U.S. —, 112 S.Ct. 2949, 119 L.Ed.2d 572 (1992); Perkins v. State, 463 So. 2d 481, 483 (Fla. 2d DCA 1985). Giving a nonstandard instruction that tends to mislead the jury is reversible error. Doyle v. State, 483 So. 2d 89 (Fla. 4th DCA 1986). The state argues that the petitioner failed to preserve this error for review because h…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Palmes v. State, 397 So. 2d 648 (Fla. 1981)
- Brown v. State, 367 So. 2d 616 (Fla. 1979)
- Augustin Corujo v. State, 424 So. 2d 43 (Fla. 2d DCA 1982)
- Warren v. Warren, 455 So. 2d 519 (Fla. 1st DCA 1984)
- Briggs v. State, 455 So. 2d 519 (Fla. 1st DCA 1984)
- Barker v. State, 78 Fla. 477 (Fla. 1919)
- Mathew v. State, 209 So. 2d 234 (Fla. 2d DCA 1968)