TIM CLEMON, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE

Fla. 3d DCA | 1985-07-30
No. 83-2499
Before HENDRY, BASKIN and FERGUSON, JJ.
473 So. 2d 271 Florida District Court of Appeal, Third District (1985) Positive Treatment
Cited by 6 cases

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Holding

The court held that the sentence for robbery with a weapon was excessive because the jury did not find the weapon to be deadly, and the prosecutor's comment, while improper, did not warrant a mistrial as the defense invited the error by refusing a curative instruction.


Headnotes

[1] A defendant's failure to accept a trial court's offer to provide a curative instruction renders any subsequent error invited and not grounds for reversal.

[2] A motion for mistrial is addressed to the sound discretion of the trial court and should only be granted in cases of absolute necessity.

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Facts & Procedural History

The defendant was convicted of sexual battery, burglary, and robbery with a weapon. During trial, the prosecutor made an improper remark, and the defe…

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Opinion of the Court
BASKIN, Judge.

BASKIN, Judge.

Following an incident in which defendant Clemon allegedly assaulted a woman in her home, the state filed an information charging him with three criminal offenses. The information charged, in count I, that Clem-on committed a sexual battery upon the victim and, in the process, used or threatened to use a deadly weapon, a knife; in count II, that he committed a burglary during the course of which he armed himself with a dangerous weapon, a knife, and assaulted the victim; and, in count III, that he committed a robbery upon the victim while carrying a weapon, namely, a knife. A jury found Clemon guilty as charged, and the trial court imposed three concurrent sentences of life imprisonment.

On appeal, Clemon raises two issues: first, he complains of the trial court’s denial of his motion for mistrial following an improper remark by the prosecutor; second, he challenges the sentence imposed for count III as exceeding the lawful maximum. We find no merit in his first point, but agree that the sentence for count III is erroneous.

With regard to the challenged prosecutorial comment * the record reveals that Clemon declined to accept the trial court’s offer to give the jury a curative instruction. “Where the trial court has extended counsel an opportunity to cure any error, and counsel fails to take advantage of the opportunity, such error if any, was invited and will not warrant reversal.” Sullivan v. State, 303 So. 2d 632, 635 (Fla.1974); cert. denied, 428 U.S. 911, 96 S.Ct. 3226, 49 L.Ed.2d 1220 (1976); reh’g denied, 429 U.S. 873, 97 S.Ct. 190, 50 L.Ed.2d 154 (1977). Furthermore, “a motion for mistrial is addressed to the sound discretion of the trial court, Ferguson v. State, 417 So. 2d 639 (Fla.1982); Jackson v. State, 419 So. 2d 394 (Fla. 4th DCA 1982), ... and ‘the power to declare a mistrial ... should be exercised with great care and ... only in cases of absolute necessity,’ Salvatore v. State, 366 So. 2d 745, 750 (Fla.1978), cert. denied, 444 U.S. 885, 100 S.Ct. 177, 62 L.Ed.2d 115 (1979).” Morales v. State, 431 So. 2d 648, 649 (Fla. 3d DCA 1983).

Counsel for Clemon sought a mistrial on the ground that the state’s comment suggested the existence of additional evidence against Clemon which the defense wanted to exclude, demon's counsel rejected the court’s offer of a curative instruction, maintaining that it would be impossible to formulate such an instruction. We disagree. A curative instruction would have dispelled any unfavorable implication arising from the comment. Thus, the comment cannot be considered so prejudicial as to mandate a mistrial. See Ferguson; Johnsen v. State, 332 So. 2d 69 (Fla.1976); Moore v. State, 418 So. 2d 435 (Fla. 3d DCA 1982). At most, in light of the other evidence presented at trial, the comment constituted harmless error. McCray v. State, 433 So. 2d 5, 7 (Fla. 4th DCA 1983), approved on other grounds, 473 So. 2d 203 (Fla.1985); cf. Williamson v. State, 459 So. 2d 1125 (Fla. 3d DCA 1984) (where prosecutor stated that he could have called additional witnesses to testify to defendant’s guilt, error neither harmless nor curable in light of questionable identification by victims).

Next we consider the sentence imposed in count III. Section 812.13(2)(b), Florida Statutes (1981), declares that robbery with a weapon is a first degree felony, punishable by a maximum term of thirty years imprisonment. § 775.082(3)(b), Fla. Stat. (1981). A life sentence is proper only upon a finding that the perpetrator of the robbery carried a deadly weapon in the course of committing the robbery. Miller v. State, 370 So. 2d 73 (Fla. 2d DCA 1979); Chapola v. State, 347 So. 2d 762 (Fla. 1st DCA 1977); § 812.13(2)(a), Fla.Stat. (1981); see Sanders v. State, 386 So. 2d 256 (Fla. 2d DCA 1980). In this case, neither the information nor the jury verdict referred to a deadly weapon. Thus, we are compelled to hold that the sentence was excessive and reversal is mandated. We therefore remand the cause to the trial court with instructions to reduce the sentence on count III to thirty years imprisonment. Defendant Clemon need not be present for this purpose.

Affirmed in part; reversed in part; remanded.

*

The trial court granted a defense motion in limine and excluded as hearsay references to fingerprint standards taken by technician Zeller who was unavailable for trial. During cross-examination of technician Peterson, who had taken a second set of standards, the following exchange occurred:

Q Technician Peterson, did you obtain this set of standard fingerprints which has been marked as State’s Exhibit No. 13?

MR. STEFFIN [For the State]: I object. Your Honor. THE COURT: Overruled.

MR. STEFFIN: Judge—

THE COURT: Do you want to come side-bar? MR. STEFFIN: Yes.

I will withdraw my objection but realizing that this opens the door to exactly what they don't want in. (emphasis supplied)


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Citator

Cited By

  • Carroll v. State, 497 So. 2d 253 (Fla. 3d DCA 1985)
    …lty of “armed robbery without a firearm,” does not permit the imposition of a life sentence under section 812.13(2)(a), Florida Statutes (1983),1 which applies only to a conviction of robbery with “a firearm or other deadly weapon.” Clemon v. State, 473 So. 2d 271 (Fla. 3d DCA 1985); Streeter v. State, 416 So. 2d 1203 (Fla. 3d DCA 1982). The jury finding of an “armed robbery” obviously refers to the defendant’s taking of the victim’s pocketknife. See State v. Brown, 496 So. 2d 194 (Fla. 3d DCA 1986). But sinc…
  • Harris v. State, 34 So. 3d 187 (Fla. 1st DCA 2010)
    …y error that could have been cured by such an instruction was invited error that cannot serve as a basis for reversal. See Sullivan v. State, 303 So. 2d 632, 635 (Fla.1974); Gonzalez v. State, 511 So. 2d 703, 704 (Fla. 3d DCA 1987); Clemon v. State, 473 So. 2d 271 (Fla. 3d DCA 1985). It is well-settled that a motion for mistrial should be granted only “in cases of absolute necessity.” Salvatore v. State, 366 So. 2d 745, 750 (Fla.1978). Where, as here, the testimony giving rise to the motion for mistrial impr…
  • Partridge v. State, 680 So. 2d 543 (Fla. 1st DCA 1996)
    …elony punishable by life, though the charging document only alleged the first-degree felony of robbery with a weapon. It was patently erroneous to convict appellant of an offense that was not properly charged in the information. See Clemon v. State, 473 So. 2d 271 (Fla. 3d DCA 1985). The appellant agrees that the reduction of the offense from a first-degree felony punishable by life down to a first-degree felony will not alter the habitual violent felony offender sentence he received for this crime. Accordi…

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