LEON FINKLEA, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Leon Finklea was convicted of two counts of robbery with a firearm following a joint trial with co-defendant John Edward Smith. The appellate court reversed and remanded for a new trial, finding that a witness's reference to 'two different robberies' during cross-examination by co-defendant's counsel was unfairly prejudicial and that the trial court erred in sentencing without applying sentencing guidelines.
The court reversed and remanded, holding that the reference to 'two different robberies' was unfairly prejudicial to Finklea, especially given the scant evidence against him, and that the trial court erred in sentencing without a sentencing guidelines scoresheet as mandated by Florida law.
[1] A mistrial should be granted when a witness's testimony, elicited by co-counsel, introduces unfairly prejudicial information about unrelated criminal acts, especially whe…
[2] The failure of a defendant to request a cautionary instruction does not preclude appellate review of prejudicial testimony concerning prior unrelated criminal acts.
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Join FLexlaw to unlock all legal intelligence“We find that the remark by State witness Golden as concerning two robberies, elicited by counsel for co-defendant, was unfairly prejudicial. This is especially true in light of the scant evidence in this case relating to Finklea.”
Establishes the court's finding of prejudicial error warranting reversal
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Join FLexlaw to unlock all legal intelligenceOn January 2, 1984, two black males robbed Rhymes Motor Company in Pensacola. One victim identified co-defendant Smith as a robber, but neither victim…
The full statement of facts, procedural history, and disposition for this case are member content.
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SHIVERS, Judge.
John Edward Smith and appellant Leon Finklea were both charged with two counts of robbery with a firearm and were jointly tried. Leon Finklea separately appeals his conviction on these counts. We find the following issues have merit and reverse and remand:
(1) Whether the trial court erred in denying appellant’s motion for mistrial following reference by a witness to another robbery during cross-examination by counsel for co-defendant Smith;
(2) Whether the trial court erred in finding the sentencing guidelines did not apply and in sentencing appellant without a scoresheet.
We do not address the remaining issues.
On January 2, 1984, two black males, one of whom had a revolver, robbed Rhymes Motor Company in Pensacola. Although one of the two victims identified John Edward Smith as one of the robbers, neither victim could identify appellant Finklea. The only testimony inculpating Finklea is the testimony of Jessie James Golden.
Golden, a State witness, testified that during a conversation he had with Smith and Finklea, that Finklea talked about Finklea’s participation in the robbery. On cross-examination of Golden by co-defendant Smith’s counsel the following occurred:
Q. When did they take you by the lot? You said they carried you by the lot, when?
A. On that Tuesday or that Wednesday.
Q. So when you gave that deposition back — to us over the telephone there, you told us a lie?
A. I didn’t exactly tell no lie.
Q. What was it?
A. We went by the car lot on a Tuesday or Wednesday.
Q. But you told me, sir, it was a Friday. A. We are talking about two different robberies.
Q. What two different robberies? I’m not talking about any robberies. I said, “When did they take you by the car lot?”
MR. TERRELL [Appellant’s counsel]: Judge, can we approach the bench?
THE COURT: Yes. Sustain, you are getting into dangerous territory.
MR. TERRELL: Can we approach the bench?
THE COURT: Yes, sir. Whereupon, Finklea’s attorney promptly moved for a mistrial which was denied.
Witness Golden testified that he (Golden) had four or five previous felony convictions and admitted on cross-examination that there was a second-degree robbery charge pending against him in Alabama. Prior to the trial in this cause, Mr. Golden had been called by the State to testify about these same facts in a probation revocation hearing. When Golden was called, he initially refused to testify. The trial judge admonished Mr. Golden that, since he was not implicated in the crime, that he would be subject to contempt and imprisonment if he failed to testify. Thereupon, Golden testified and told of Finklea’s involvement in the crime.
We find that the remark by State witness Golden as concerning two robberies, elicited by counsel for co-defendant, was unfairly prejudicial. This is especially true in light of the scant evidence in this case relating to Finklea.
Despite cautionary instructions, the introduction of a prior unrelated criminal act is too prejudicial for the jury to disregard. See Vasquez v. State, 405 So. 2d 177 (Fla. 3d DCA 1981), approved in part, quashed in part, 419 So. 2d 1088 (Fla.1982). The failure of Finklea to ask for a cautionary instruction does not preclude review.
The fact that the remark was elicited by co-counsel does not lessen the prejudicial impact on the jury. See Sublette v. State, 365 So. 2d 775 (Fla. 3d DCA 1979), appeal dismissed, 378 So. 2d 349 (Fla.1979), (comments by co-defendant’s counsel on the defendant’s silence). Although this determination of prejudice to appellant is disposi-tive, we note that Fla.R.Crim.P. 3.701 d.l. mandates the preparation of a sentencing guidelines scoresheet. Myrick v. State, 461 So. 2d 1359 (Fla. 2d DCA 1984); Doby v. State, 461 So. 2d 1360 (Fla. 2d DCA 1984).
REVERSED and REMANDED for a new trial.
ERVIN, C.J., concurs.
JO ANOS, J., dissents with written opinion.
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Jackson v. State, 213 So. 3d 754 (Fla. 2017)…exposed him to impeachment. Id.; see also Henderson, 789 So. 2d at 1018 (“In this case ... character was a central issue.”). By contrast, Jackson did not assert self-defense, and his character was not an issue in dispute. Likewise, Finklea v. State, 471 So. 2d 596, 597 (Fla. 1st DCA 1985), is distinguishable because the witness in that case indicated that the defendant had previously been involved in two robberies. Linda’s limited, vague comment about Jackson having been released was not similar to the affirm…
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Shorter v. State, 532 So. 2d 1110 (Fla. 3d DCA 1988)…g attorney’s improper question, its subsequent cautionary instruction failed to undo the damage done by this time bomb of a question. Jackson v. State, 451 So. 2d 458, 461 (Fla.1984), petition for cert. filed, (U.S. June 14, 1988); Finklea v. State, 471 So. 2d 596, 597 (Fla. 1st DCA 1985); see Vazquez v. State, 405 So. 2d 177, 180 (Fla. 3d DCA 1981), approved in part, quashed in part, 419 So. 2d 1088 (Fla.1982); § 90.403, Fla.Stat. (1987). Lastly, we conclude that the above-stated prosecutorial misconduct,…
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Brooks v. State, 868 So. 2d 643 (Fla. 2d DCA 2004)…v. State, 736 So. 2d 1217, 1218 (Fla. 5th DCA 1999); see also Dawkins v. State, 605 So. 2d 1329, 1330 (Fla. 2d DCA 1992); Garvey v. State, 754 So. 2d 130 (Fla. 3d DCA [*645] 2000); J.P. v. State, 546 So. 2d 753 (Fla. 3d DCA 1989); Finklea v. State, 471 So. 2d 596, 597 (Fla. 1st DCA 1985). Thus the question presented to us is whether Rosa’s nonresponsive remark — considered in the light of the trial court’s cautionary instruction to the jury — can be deemed harmless error. Reviewed for abuse of discretion, a…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. Vazquez, 419 So. 2d 1088 (Fla. 1982)
- Myrick v. State, 461 So. 2d 1359 (Fla. 2d DCA 1984)
- Doby v. State, 461 So. 2d 1360 (Fla. 2d DCA 1984)
- Jester v. State, 405 So. 2d 177 (Fla. 5th DCA 1981)
- Vazquez v. State, 405 So. 2d 177 (Fla. 3d DCA 1981)
- Sublette v. State, 365 So. 2d 775 (Fla. 3d DCA 1978)