RICHARD CHARLES FOWLER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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PER CURIAM.
AFFIRMED. See Lightbourne v. State, 471 So. 2d 27 (Fla.1985); Dismuke v. State, 388 So. 2d 1324 (Fla. 5th DCA 1980). See also Engle v. State, 438 So. 2d 803 (Fla.1983), cert. denied, Engle v. Florida, 465 U.S. 1074, 104 S.Ct. 1430, 79 L.Ed.2d 753 (1984); Taylor v. State, 481 So. 2d 970 (Fla. 5th DCA 1986); Franklin v. State, 472 So. 2d 1303 (Fla. 1st DCA 1985).
UPCHURCH and COWART, JJ., concur. DAUKSCH, J., concurs specially with opinion.
DAUKSCH, Judge,
concurring specially:
This is an appeal from'an order denying post-conviction relief under Rule 3.850, Florida Rule of Criminal Procedure. The point raised is whether the issue was one of such a fundamental nature as to permit the appellant to raise the issue for the first time by the collateral relief vehicle.
The alleged error complained of was that of allowing a jury to stop its deliberations and disperse to go home and then return the next morning to resume deliberations. Livingston v. State, 458 So. 2d 235 (Fla.1984), deemed this procedure to be error in a capital murder case but did not specifically hold it to be error in a non-capital murder case such as this one. In Taylor v. State, 481 So. 2d 970 (Fla. 5th DCA 1986), this court held the procedure to be not error in a non-capital, attempted robbery case. Neither case held the error to be fundamental, probably because that question was not before either of those courts. In both of those cases there was an adequate objection and the issue was decided on plenary appeal. Here, there was no objection and the issue was not raised on appeal. This court has previously affirmed the conviction of this appellant. Fowler v. State, 424 So. 2d 778 (Fla. 5th DCA 1982).
While I am of the opinion that it was error to allow the jury to separate and go home for the evening and then resume the previously-begun deliberation, I do not consider the error to be fundamental and am of the opinion that Engle v. State, 438 So. 2d 803 (Fla.1983), cert. den. 465 U.S. 1074, 104 S.Ct. 1430, 79 L.Ed.2d 753 (1984), supports this position. So, because the issue was not raised on direct appeal and because there was no objection at trial I am of the opinion that appellant has waived the alleged error. Even without the waiver it was not error because this court has so held in Taylor v. State, 481 So. 2d 970 (Fla. 5th DCA 1986). I agree with the affirmance.
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Antwuan Snell v. State, 939 So. 2d 1175 (Fla. 4th DCA 2006)…knowledge that item was stolen); State v. Colorado, 890 So. 2d 468 (Fla. 2d DCA 2004) (no independent proof that defendant was driver of vehicle to support admission of inculpatory statement in vehicular homicide prosecution); and Harrison v. State, 483 So. 2d 757 (Fla. 2d DCA 1986) (no independent evidence of defendant’s possession of gun to support defendant’s admission in prosecution for possession of a firearm by a convicted felon). In none of those cases did the state introduce evidence showing the degre…
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Ulloa v. State, 486 So. 2d 1373 (Fla. 3d DCA 1986)…gh to erode any contention of fundamental error, it is apparent from Engle v. State, 438 So. 2d 803 (Fla.1983), cert. denied, 465 U.S. 1074, 104 S.Ct. 1430, 79 L.Ed.2d 753 (1984), that Raines announced no fundamental error rule. See Fowler v. State, 483 So. 2d 757 (Fla. 5th DCA 1986) (Dauksch, J., concurring specially). In En-gle, the court, rejecting the defendant’s reliance on Raines as controlling, affirmed a first-degree murder conviction notwithstanding that the jury was separated overnight during delibe…
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A. P. v. State, 250 So. 3d 799 (Fla. 2d DCA 2018)…o support any of the inferences necessary to establish constructive possession is A.P.'s admission. This brings us full circle to Ras, which, as stated above, teaches us that this will not do. See Ras, 610 So. 2d at 25; see also Harrison v. State, 483 So. 2d 757, 758 (Fla. 2d DCA 1986) (holding that the corpus delicti doctrine prohibited the appellant's conviction for possession of a firearm where there was no proof of actual or constructive possession of the firearm apart from the appellant's confession).…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Silkwood v. Kerr-McGee Corp., 465 U.S. 1074 (U.S. 1984)
- Engle v. State, 438 So. 2d 803 (Fla. 1983)
- Livingston v. State, 458 So. 2d 235 (Fla. 1984)
- Lightbourne v. State, 471 So. 2d 27 (Fla. 1985)
- Franklin v. State, 472 So. 2d 1303 (Fla. 1st DCA 1985)
- Taylor v. State, 481 So. 2d 970 (Fla. 5th DCA 1986)
- Dismuke v. State, 388 So. 2d 1324 (Fla. 5th DCA 1980)