ERIC DARWIN DOBSON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Eric Darwin Dobson appeals his conviction for two counts of attempted first-degree murder with a firearm, challenging restrictions on his closing argument, the admission of a co-defendant's guilty plea, and the trial court's departure from sentencing guidelines. The appellate court affirms, finding no reversible error on any ground.
The trial court did not err. The restrictions on closing argument were proper as they addressed facts not in evidence, counsel opinions, or improper statements of law. The guilty plea testimony issue was not preserved for appeal because no objection was made and the defense attorney followed up on cross-examination and referenced it in closing. The sentencing departure was justified by the extreme risk to public safety, including the actual injury to a bystander.
[1] Objections sustained during closing arguments that relate to facts not in evidence, counsel opinions, or improper statements of law do not constitute reversible error.
[2] A defendant waives an issue for appeal by failing to object to the admission of evidence and by subsequently cross-examining the witness on that evidence and referring to…
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 intelligence“the objections sustained by the trial court during defense closing arguments related either to facts not in evidence, counsel opinions or improper statement of the law”
Establishes that the trial court properly restricted closing argument by addressing only improper statements, facts not in evidence, or misstatements of law.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceOn June 9, 1988, Dobson and Juan Ward had a history of violent contact. In the early morning hours, Dobson, Leonard Brooks, and Rudy Smith went to Gwe…
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HARRIS, Judge.
Eric Darwin Dobson appeals his conviction and sentence for two counts of attempted first degree murder with a firearm. He contends the court erred in restricting his closing argument, in admitting into evidence the fact that a co-defendant pled guilty and in departing from the guideline sentence range. We disagree and affirm.
Dobson and Juan Ward were not friends. Violence often accompanied their contacts. On at least one occasion prior to the events of this case gun shots were involved in their contacts.
In the early morning hours of June 9, 1988, Dobson, Leonard Brooks and Rudy Smith were in Smith’s car at Gwen’s Inn. Dobson directed Smith to park his car near a convertible in which Juan Ward was sitting with Tony Davis. Dobson and Brooks had firearms. They left the car and approached the convertible. They removed Davis and Ward from the convertible. Several shots were fired leaving both Davis and Ward lying injured in the parking lot. Other people were present during the shooting and one of the bystanders was wounded in the shooting.
Dobson first complains that the trial judge improperly restricted his closing statement. However, the record reflects that the objections sustained by the trial court during defense closing arguments related either to facts not in evidence, counsel opinions or improper statement of the law. See Wright & Ford Millworks, Inc. v. Long, 412 So. 2d 892 (Fla. 5th DCA 1982); Singletary v. State, 483 So. 2d 8 (Fla. 2nd DCA 1985). No error is shown.
Next, Dobson maintains that it was improper to permit Rudy Smith, originally a co-defendant who appeared as a state witness, to testify that he pled guilty to the offense. However, there was no objection to this testimony and, in fact, Dobson’s attorney followed up the inquiry on cross examination and referred to it in his closing argument. Therefore, the issue is not preserved for appeal. Castor v. State, 365 So. 2d 701 (Fla.1978).
Finally, Dobson urges that the trial court erred by departing on the basis that “defendant’s crime created an extreme risk of safety to others.” 1 Here not only were bystanders put at risk because of this “gangland type” hit outside a public lounge, one was actually injured. This is a sufficient reason for departure. Wareham v. State, 560 So. 2d 408 (Fla. 5th DCA 1990).
AFFIRMED.
DANIEL, C.J., and PETERSON, J., concur. . The court listed additional reasons which appear improper. However, the sentence should be upheld if at least one reason for departure is appropriate. § 921.001(5), Fla.Stat. (1987).
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State v. Johnson, 695 So. 2d 771 (Fla. 5th DCA 1997)…7). . See State v. Riley, 617 So. 2d 340 (Fla. 1st DCA 1993). . See Lindsey v. State, 636 So. 2d 1327 (Fla.), cert. denied, 513 U.S. 972, 115 S.Ct. 444, 130 L.Ed.2d 354 (1994); Charles v. State, 683 So. 2d 583 (Fla. 4th DCA 1996); Dobson v. State, 566 So. 2d 560 (Fla. 5th DCA 1990), rev. denied, 577 So. 2d 1326 (Fla.1991). . Section 316.066(4) provides; Except as specified in this subsection, each accident report made by a person involved in an accident and any statement made by such person to a law enfor…
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Bellamy v. State, 677 So. 2d 390 (Fla. 2d DCA 1996)…the departure: .The Defendant’s crime created a substantial risk of death or great bodily harm to others. There were numerous people around and others could have also been hurt by the Defendant. Fla.Stat. § 921.0016(3)(i). See also Dobson v. State, 566 So. 2d 560 (Fla. 5th DCA 1990). Furthermore, the Defendant’s conduct was so extraordinary or egregious that it goes beyond the ordinary case. State v. McCall, 524 So. 2d 663 (Fla.1988); Vanover v. State, 598 [498] So. 2d 899 (Fla.1986); Randolph v. State, 622…1 / 2
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Strawn v. State, 576 So. 2d 877 (Fla. 5th DCA 1991)…holding that the placement of bystanders at risk of harm during the commission of a robbery is a valid reason for departure. However, the facts surrounding those cases reveal that a defendant created a direct, substantial risk. See Dobson v. State, 566 So. 2d 560 (Fla. 5th DCA 1990) (“gangland-style hit” outside public lounge while bystanders were nearby); Simpson v. State, 562 So. 2d 830 (Fla. 1st DCA 1990) (wildly firing shots in an area placing nearby persons at risk); Wareham v. State, 560 So. 2d 408 (Fl…
Authorities Cited
- Castor v. State, 365 So. 2d 701 (Fla. 1978)
- Wright & Ford Millworks, Inc. v. Long, 412 So. 2d 892 (Fla. 5th DCA 1982)
- Singletary v. State, 483 So. 2d 8 (Fla. 2d DCA 1985)
- Wareham v. State, 560 So. 2d 408 (Fla. 5th DCA 1990)