ALBERTO VINIEGRA, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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PER CURIAM.
We grant defendant’s Motion for Rehearing and substitute the following opinion for our April 7, 1992 opinion.
We affirm defendant's convictions and sentences for trafficking in cocaine and attempted first degree felony murder. Defendant asserts that the trial court committed reversible error in giving the jury a flight instruction. Under the authority of Smith v. State, 598 So. 2d 1063, 1067 (Fla.1992), we find that defendant is entitled to the benefit of Fenelon v. State, 594 So. 2d 292 (Fla.1992), which disapproved of jury instructions on flight. However, despite defendant’s proper objection to the flight instruction and preservation of the issue for appellate review, Smith, 598 So. 2d at 1067, we find the error harmless. Bryant v. State, 602 So. 2d 966 (Fla. 3d DCA 1992).
Furthermore, the trial court properly denied defendant’s motion to sever. Hostility among codefendants and their attempts to place blame on each other are insufficient reasons to justify severance. Bryant v. State, 565 So. 2d 1298, 1303 (Fla.1990). Here, the codefendant asserted that the seized cocaine was not his and the jury was aware that several individuals participated in the drug transaction. The code-fendant did not inculpate defendant Vinieg-ra. A motion to sever should be granted “when the jury could be confused or improperly influenced by evidence which applies to only one of several defendants.” McCray v. State, 416 So. 2d 804, 806 (Fla.1982); Bryant. The statement defendant objected to did not rise to that level. Severance was not required.
Affirmed.
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Keys v. State, 606 So. 2d 669 (Fla. 1st DCA 1992)…te “language which might be construed as a comment on the evidence.” Fenelon v. State, 594 So. 2d 292 (Fla.1992). Our decision in this case follows that decision as mandated in Smith v. State, 598 So. 2d 1063 (Fla.1992). See also Viniegra v. State, 604 So. 2d 863 (Fla. 3d DCA 1992); Bryant v. State, 602 So. 2d 966 (Fla. 3d DCA 1992). Thus, on this stated ground alone, we hold that the giving of the flight instruction requires remand for a new trial. The two remaining points, appellant having conceded one of…1 / 2
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Lewis v. State, 623 So. 2d 1205 (Fla. 4th DCA 1993)…. 1st DCA 1992) (retrospective application of Fenelon is required by Smith); Dupree v. State, 615 So. 2d 713 (Fla. 1st DCA 1993); Bryant v. State, 602 So. 2d 966 (Fla. 3d DCA 1992) (Fenelon applies retroactively because of Smith); Viniegra v. State, 604 So. 2d 863 (Fla. 3d DCA 1992). The state further argues that even if Fenelon does apply, the giving of the jury instruction is subject to the harmless error test. The supreme court upheld Fenelon’s conviction on the ground that the giving of the instruction i…
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Crocker v. State, 616 So. 2d 1180 (Fla. 1st DCA 1993)….Ct. 1863, 123 L.Ed.2d 483 (Fla.1993), the supreme court found that although it would have been better for the jury to not have been given the flight instruction, the error was harmless in view of other evidence of guilt. See also Viniegra v. State, 604 So. 2d 863 (Fla. 3d DCA 1992). In Keys v. State, 606 So. 2d 669 (Fla. 1st DCA 1992), however, this court held that it was error for the trial court to give a flight instruction to the jury where it would be necessary for the jury to pyramid inferences of the c…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Rhoda Smith v. State, 598 So. 2d 1063 (Fla. 1992)
- King Anthony Green v. State, 594 So. 2d 292 (Fla. 1992)
- Ervin McCRAY v. State, 416 So. 2d 804 (Fla. 1982)
- Bryant v. State, 565 So. 2d 1298 (Fla. 1990)
- Bryant v. The State, 602 So. 2d 966 (Fla. 3d DCA 1992)