CHARLES I. GLEASON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Charles Gleason was convicted of attempted sexual battery, battery, and false imprisonment arising from an alleged assault on a prosecution witness. The appellate court reversed and remanded for a new trial on battery and false imprisonment charges, finding the trial judge committed error through improper jury instructions, admission of inadmissible hearsay, and failure to control improper prosecutorial conduct.
The court held that it was error to instruct the jury on attempted sexual battery when there was no evidence of an attempt and only evidence of a completed offense; that the prior consistent statement testimony was inadmissible hearsay when no charge of recent fabrication was raised; and that the prosecutor's inflammatory and indefensible comments suggesting the accused committed other crimes and possibly attempted murder fundamentally violated fairness requirements.
[1] A jury instruction on an attempted offense is improper when the only evidence presented proves a completed offense.
[2] A defendant acquitted of a charged crime cannot be retried for that same offense.
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Join FLexlaw to unlock all legal intelligence“it was error to charge the jury on attempted sexual battery when "... there was no evidence to support such attempt and the only evidence proves a completed offense."”
Establishes the improper jury instruction on attempted sexual battery when only evidence of completed offense existed
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Join FLexlaw to unlock all legal intelligenceA prosecution witness testified that she was raped in a van and then beaten when attempting to escape. A police officer testified about an interview w…
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[*279] DAUKSCH, Judge.
This is an appeal from a conviction for attempted sexual battery, battery and false imprisonment.
These convictions arose out of an episode where the prosecution witness said she was raped in a van and then while attempting to escape was captured and beaten outside the van. We reverse because the trial judge improperly instructed the jury and allowed improper testimony and prosecutorial conduct.
As to the erroneous instruction, it was error to charge the jury on attempted sexual battery when “... there was no evidence to support such attempt and the only evidence proves a completed offense.” Fla.R.Crim.P. 3.510(a); Pride v. State, 511 So. 2d 1068 (Fla. 1st DCA 1987); Henry v. State, 445 So. 2d 707 (Fla. 4th DCA 1984). Because the jury found appellant not guilty of the crime charged he cannot be tried again for the sexual battery allegation.
At trial the police officer testified about an interview with the prosecution’s witness at a hospital after the alleged incident. That testimony was meant to bolster the testimony of the prosecution’s witness at trial and was no more than a prior consistent statement. The defendant did not assert any charge of recent fabrication at trial so this hearsay is inadmissible. Keller v. State, 586 So. 2d 1258 (Fla. 5th DCA 1991).
The prosecutor made various improper and inflammatory statements in final argument. Among those are:
The State contends the Defendant not only controlled the victim. He controlled witnesses. You have seen the witnesses he has brought in. Apparently there is one witness he couldn’t control. Where is Morgan?
I would bet a few witnesses used more than alcoholic beverages on May 13th and May 12th.
[Tjhat’s where you have what [_] saw that night, him pulling her back to that van. To do what? To commit another felony? To commit another sexual battery? Maybe he didn’t get finished off ... or was he going to try to lessen the chance of detection of the felony that had already been committed.
The Defense, especially in cases like this, attack the victim. We talked about TV shows and the expectations. That’s why they’ve got to attack the victim.
The clear implication is that the accused has committed other crimes and possibly was about to commit murder to silence the witness. These indefensible comments are fundamentally unfair and cause reversal. See also Stokes v. Wet ’N Wild, Inc., 523 So. 2d 181 (Fla. 5th DCA 1988).
The judgment is reversed and this cause remanded for a new trial for battery and false imprisonment.
REVERSED and REMANDED.
HARRIS, J., and WALDEN, J.H., Senior Judge, concur.
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Wilson v. State, 622 So. 2d 31 (Fla. 1st DCA 1993)…and lascivious assault occurred. If the state is correct, then it would have been error for the trial court to charge the jury on an “attempt” offense where the only evidence proved a completed offense. See Fla.R.Crim.P. 3.510(a); Gleason v. State, 591 So. 2d 278, 279 (Fla. 5th DCA 1991); Pride v. State, 511 So. 2d 1068 (Fla. 1st DCA 1987); Henry. Appellant relies on Firkey v. State, 557 So. 2d 582, 586 (Fla. 4th DCA) (on reh’g), rev. den., 574 So. 2d 140 (Fla.1990), in which the Fourth District Court said…
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Pepitone v. State, 846 So. 2d 640 (Fla. 2d DCA 2003)…shall not instruct the jury if there is no evidence to support the attempt and the only evidence proves a completed offense.” When the defendant is improperly convicted of such a lesser offense, the conviction must be reversed. See Gleason v. State, 591 So. 2d 278 (Fla. 5th DCA 1991); see also State v. Robinson, 771 So. 2d 1256, 1258 (Fla. 3d DCA 2000) (affirming grant of new trial by trial court). Here, the evidence at trial did not support an attempt instruction. Normally, an attempted burglary involves a…
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Jackson v. State, 690 So. 2d 714 (Fla. 4th DCA 1997)…n, not sale, of marijuana and cocaine. The prosecutor’s suggestion to the contrary served only to appeal to the emotions of the jurors and to suggest that Jackson was guilty of an evil with which he had not been charged. Cf. [*718] Gleason v. State, 591 So. 2d 278 (Fla. 5th DCA 1991)(holding that prosecutor’s suggestion during closing argument that defendant, who was charged with attempted sexual battery and false imprisonment, had committed prior crimes and was about to commit murder to silence a witness was…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Stokes v. WET 'N Wild, Inc., 523 So. 2d 181 (Fla. 5th DCA 1988)
- Keller v. State, 586 So. 2d 1258 (Fla. 5th DCA 1991)
- Rickie Lee Henry v. State, 445 So. 2d 707 (Fla. 4th DCA 1984)
- General Jackson Pride v. State, 511 So. 2d 1068 (Fla. 1st DCA 1987)