SALAMA
v.
MCGREGOR
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Rios appealed his conviction for Careless Driving. The appellate court affirmed the conviction, holding that Rios failed to preserve issues for appeal by not objecting to testimony at trial and that substantial competent evidence supported the trial judge's findings.
The court affirmed the conviction. Rios failed to preserve the first point for appeal by not moving to strike his own testimony or objecting to the trooper's testimony, thus waiving the accident report privilege. Testimony from the other driver and the trooper constituted substantial competent evidence supporting the conviction.
[1] Failure to object to testimony or move to strike it waives the issue for appellate review.
[2] The finder of fact, not the appellate court, determines the credibility of witnesses and the weight of the evidence.
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“There was no motion to strike and disregard Rios' testimony, and there was no objection to Trooper Mathews' testimony or motion to strike and disregard. Therefore, Rios has failed to preserve the point for appeal, and has waived the accident report privilege.”
Establishes that failure to object at trial results in waiver of appellate arguments
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Join FLexlaw to unlock all legal intelligenceRios was convicted of Careless Driving following a crash. At trial, Rios testified about what he told investigating FHP Trooper Mathews at the crash s…
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PER CURIAM.
FINAL ORDER AFFIRMING TRIAL COURT
Rios appeals his conviction for Careless Driving. We have read the briefs, the transcript of the proceedings, and reviewed the filings in the record on appeal. After careful consideration, we affirm. As to his first point, in response to a question asked of him on direct examination by his trial counsel, Rios testified as to what he told investigating FHP Trooper Mathews at the crash scene. Thereafter, in response to a question asked by the trial judge, the trooper related what Rios told him at the scene. There was no motion to strike and 2 of 2 disregard Rios’ testimony, and there was no objection to Trooper Mathews’ testimony or motion to strike and disregard. Therefore, Rios has failed to preserve the point for appeal, and has waived the accident report privilege. See Padovano, Florida Appellate Practice § 8:2 (2011 ed.); Salama v. McGregor, 656 So. 2d 215 (Fla. 5th DCA 1995) and cases therein cited.
Regarding his second point, we conclude that the testimony of the other driver involved in the crash and that of the trooper was substantial competent evidence to support the trial judge’s decision. Credibility of witnesses, resolution of conflicting testimony, and weight of the evidence is the sole province of the finder of fact, the trial court, and not this circuit court on appeal. See Winkler v. Lawyers Title Ins. Co., 41 So. 3d 414 (Fla. 3d DCA 2010).
AFFIRMED.
DONE AND ORDERED at Orlando, Orange County, Florida, on this 1st
day of April , 2011.
/S/
ROM W. POWELL
Senior Circuit Judge
/S/
/S/
ROBERT M. EVANS
JANET C. THORPE Circuit Judge
Circuit Judge
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing order was furnished via U.S. mail on this 4th day of April , 2011, to the following: Robert L. Sirianni, Jr., Esq., 400 North New York Ave., Ste. 215, Winter Park, Florida 32789, and Richard M. Coln, Assistant General Counsel, P.O. Box 570066, Orlando, Florida 32857; and Honorable Faye Allen, 425 N. Orange Avenue, Orlando, Florida 32801.
/S/
Judicial Assistant
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Citator
Authorities Cited
- Salama v. McGREGOR, 656 So. 2d 215 (Fla. 5th DCA 1995)
- Winkler v. Lawyers Title Ins. Corp., 41 So. 3d 414 (Fla. 3d DCA 2010)