RANDY LAMONTE FOX, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
The court held that the trial court erred in denying the motion for mistrial after defense counsel revealed the appellant's criminal past during voir dire, but this error was harmless. The court also held that the sentencing error, due to the lack of written reasons for departure sentences, required reversal and remand.
[1] A trial court errs in denying a motion for mistrial when the jury has been unfairly prejudiced by hearing that the defendant has a criminal record, especially when the er…
[2] An appellate court applies the harmless error test by reviewing both the permissible and impermissible evidence presented at trial to determine if an error affected the v…
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligenceAppellant was convicted of multiple felonies. During voir dire, defense counsel revealed appellant had a criminal past, leading to a denied mistrial m…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Motion For Severance cases and more on FLexlaw
ERVIN, Judge.
Appellant Randy Lamonte Fox appeals from his convictions for four counts of armed robbery, armed burglary, armed sexual battery, possession of cannabis and resisting an officer, and the sentences imposed therefor. We affirm in part and reverse in part and remand.
The first point raised by appellant requires this court to once again apply the harmless error test set forth in State v. DiGuilio, 491 So. 2d 1129 (Fla.1986), and approved in State v. Lee, 531 So. 2d 133 (Fla.1988). The specific error complained of concerns the lower court’s ruling on appellant’s motion to sever the charge of convicted felon in possession of a firearm. When defense counsel first moved to sever the charge before voir dire, the motion was denied. However, when defense counsel renewed the motion after voir dire, but prior to the jury being sworn, during which she revealed to the prospective jurors that appellant had a criminal past, the trial court receded from its earlier ruling and granted the motion to sever. Defense counsel then moved for mistrial, asserting that the jury had been unfairly prejudiced against appellant in that it heard that appellant had a criminal record. The court denied that motion and the matter proceeded to trial, which resulted in guilty verdicts on all charges.
Although the granting of a motion to sever is discretionary, if one of the several charges to be tried is convicted felon in possession of a firearm, severance should be granted. See Thomas v. State, 440 So. 2d 581 (Fla.1983); State v. Vazquez, 419 So. 2d 1088 (Fla.1982); Craft v. State, 441 So. 2d 704 (Fla. 2d DCA 1983). The granting of a motion for mistrial is likewise within the court’s discretion; however, it should be granted when it is necessary to ensure that the defendant receives a fair trial. Marek v. State, 492 So. 2d 1055 (Fla.1986). Certainly the lower court should have granted the initial motion to sever. Having failed to do so, it caused defense counsel to reveal to the prospective jurors that appellant had a criminal past. Considering the extremely prejudicial nature of such information, the fact that the error occurred prior to the commencement of trial, and that appellant’s right to a fair trial could have been preserved by selection of a new jury, we conclude that the lower court erred in denying appellant’s motion for mistrial.
It is next necessary for us to decide whether the error was harmless. In so saying, we are mindful that not every error requires reversal, even when the error involves a constitutional right. DiGuilio. Application of the harmless error test requires an appellate court to review the entire record, looking both at the permissible and the impermissible evidence. DiGuilio, 491 So. 2d at 1135. The permissible evidence that the jury could have legitimately relied upon in the instant case includes the testimony of four eyewitnesses, all of whom positively identified appellant at trial and whose descriptions of the perpetrator and the weapon he used were markedly similar, and, finally, evidence of both flight and that regarding the recovery and identification of items which were stolen by appellant.
The second part of the harmless error test requires that we consider the impermissible evidence which might have possibly influenced the jury’s verdict. The error here consists of defense counsel’s statements made during voir dire examination regarding appellant’s past criminal record, and one statement made during trial by a state witness relating to the “firearm charge.” .. Addressing the witness’s testimony at trial first, we conclude that any such error was harmless. Appellant was, after all, charged with four armed robberies, one armed burglary and one armed sexual battery. The reference to the firearm could have appropriately been made regarding any of those charges, rather than the firearm possession charge.
Defense counsel’s statements made during voir dire present a more serious problem. Certainly any comment regarding the accused’s prior criminal record is highly prejudicial; however, counsel’s reference to same did not amount to a lengthy dialogue or become a “feature” of the voir dire. Additionally, it should be noted that the actual crime for which appellant had been previously convicted was never revealed, and the jurors did indicate that appellant's criminal record would not affect their verdict.
DiGuilio holds that if the appellate court cannot say beyond a reasonable doubt that the error did not affect the verdict, the error is by definition harmful and the case must be reversed. 491 So. 2d at 1139. A reasonable doubt is not a possible, speculative, imaginary or forced doubt, and a reasonable doubt cannot exist if an abiding conviction of guilt remains.. See Fla.Std. Jury Instr. (Crim.) 2.03. Because appellant’s criminal history did not become the focus during voir dire or at the trial, and because there is ample, unrebutted evidence that appellant committed the crimes charged, we conclude that the error was harmless and affirm the convictions.
Turning to the sentencing error raised by appellant, not only did the state concede that the sentences needed clarification as to their consecutive or concurrent nature,1 but the consecutive life sentences imposed on appellant constituted departure sentences and, as such, were required to be accompanied by written reasons. Because the lower court erred in not providing any written reasons, reversal and remand is necessary. See Rease v. State, 493 So. 2d 454 (Fla.1986); Pride v. State, 511 So. 2d 1068 (Fla. 1st DCA 1987); Wilcox v. State, 500 So. 2d 697 (Fla. 1st DCA 1987).
AFFIRMED in part, REVERSED in part, and REMANDED with directions for the trial court to resentence appellant within the guidelines or to clarify the consecutive or concurrent nature of the sentences and provide written reasons for the departure.
BOOTH and WENTWORTH, JJ., concur. . The written sentences imposed conflicted with the oral sentences pronounced at the sentencing hearing.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Carmine Annunziata v. State, 697 So. 2d 997 (Fla. 5th DCA 1997)…ints were not assessed against offenders merely because they were released on bond when they committed their offenses. Browning v. State, 625 So. 2d 960, 961 (Fla. 5th DCA 1993); Fox v. State, 608 So. 2d 132, 132 (Fla. 3d DCA 1992); Mosley v. State, 543 So. 2d 340, 340 (Fla. 1st DCA 1989); Jones v. State, 520 So. 2d 672, 673 (Fla. 5th DCA 1988); Mize v. State, 495 So. 2d 845, 846 (Fla. 3d DCA 1986). Generally, the definition of “legal status” under construction in those cases read as follows: Offenders on pa…
-
Monson v. State, 627 So. 2d 1301 (Fla. 1st DCA 1993)…ssion charge from the charge of possession of cocaine. “Although the granting of a motion to sever is discretionary, if one of the several charges to be tried is convicted felon in possession of a firearm, severance should be granted.” Fox v. State, 543 So. 2d 340, 341 (Fla. 1st DCA 1989). Accord Vazquez v. State, 419 So. 2d 1088 (Fla.1982); Thomas v. State, 440 So. 2d 581 (Fla.1983); Craft v. State, 441 So. 2d 704 (Fla. 2d DCA 1983); Riley v. State, 434 So. 2d 3 (Fla. 3d DCA 1983); Smith v. State, 434 So. 2d…
-
Sigaray v. State, 549 So. 2d 1136 (Fla. 3d DCA 1989)…error did not affect the verdict or else reversal is required. Id. at 1139. Weighing the permissible evidence of overwhelming guilt against the impermissible evidence conveyed to the jury, we readily hold the error to be harmless. See Fox v. State, 543 So. 2d 340 (Fla. 1st DCA 1989). Affirmed. . After State v. Singletary, 549 So. 2d 996 (Fla. 1989), the trial judge’s presence during jury selection cannot be waived by anyone, including the defendant. Singletary does not retroactively apply to the case at ha…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited (11 total)
- State v. DiGUILIO, 491 So. 2d 1129 (Fla. 1986)
- State v. Vazquez, 419 So. 2d 1088 (Fla. 1982)
- State v. LEE, 531 So. 2d 133 (Fla. 1988)
- Kinchen v. State, 531 So. 2d 133 (Fla. 1988)
- Rease v. State, 493 So. 2d 454 (Fla. 1986)
- Marek v. State, 492 So. 2d 1055 (Fla. 1986)
- Craft v. State, 441 So. 2d 704 (Fla. 2d DCA 1983)
- General Jackson Pride v. State, 511 So. 2d 1068 (Fla. 1st DCA 1987)
- THE Florida BAR v. Kenworthy, 440 So. 2d 581 (Fla. 1983)
- Thomas v. State, 440 So. 2d 581 (Fla. 1983)