ANTHONY SIMON, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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The Florida District Court of Appeal affirmed a defendant's convictions for burglary and false imprisonment but modified his sentence. The court found that consecutive mandatory minimum sentences for offenses arising from a single criminal episode were improperly imposed.
1. The trial court did not err in failing to conduct a Richardson hearing because the issue was not properly preserved for appellate review. 2. The prosecutorial comments did not constitute reversible error, either individually or collectively. 3. Consecutive mandatory minimum sentences could not be imposed for offenses committed during a single criminal episode. 4. The defendant could be sentenced separately for each false imprisonment conviction as they involved different victims.
[1] A defendant's failure to object to testimony or the admission of evidence at trial waives the right to a Richardson hearing on appeal.
[2] A defendant's joining in a co-defendant's motion for mistrial does not trigger a necessity for a Richardson hearing if the issue has already been waived by the prior rece…
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Join FLexlaw to unlock all legal intelligence“Under these circumstances, the defendant can hardly complain that the trial court erred in failing to conduct a Richardson hearing.”
Establishes that the defendant waived the right to a Richardson hearing by not objecting at trial.
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Join FLexlaw to unlock all legal intelligenceAnthony Simon was convicted of burglary with assault and six counts of false imprisonment, and declared a habitual violent felony offender. He appeale…
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PER CURIAM.
This is an appeal by the defendant Anthony Simon from final judgments of conviction and sentences for (a) burglary with an assault [§ 810.02(2)(a), Fla.Stat. (1989) ] and (b) six counts of false imprisonment [§ 787.02(2), Fla.Stat. (1989) ], after having declared the defendant a habitual violent felony offender. [§ 775.084(l)(b), (4)(a), Fla.Stat. (1989) ]. We affirm with one modification.
First we find no merit in the defendant’s contention that the trial court erred in failing to conduct a hearing pursuant to Richardson v. State, 246 So. 2d 771 (Fla.1971) with reference to a property receipt which was offered, but not admitted in evidence below. We reach this result because the point has not been properly preserved for appellate review. The defendant made no objection when (1) a police witness testified at trial concerning the subject receipt and (2) later when the receipt was offered into evidence. Only the co-defendant objected, and even he did not object on the ground of a discovery violation. Under these circumstances, the defendant can hardly complain that the trial court erred in failing to conduct a Richardson hearing.
Moreover, the co-defendant’s motion for mistrial made somewhat later in the trial, to which the defendant expressly joined, [wherein a discovery violation as to the co-defendant was urged relating to the property receipt] did not, as urged, trigger the necessity for a Richardson hearing. This is so because the issue by that time had been waived, as the testimony concerning the property receipt had already been received, the receipt had been offered in evidence, and the receipt had been excluded. In any event, the defendant, in joining the co-defendant’s motion for mistrial, made no claim that he had never seen the property receipt or that there had been a discovery violation as to him. Lucas v. State, 376 So. 2d 1149 (Fla.1979); Taylor v. State, 589 So. 2d 918 (Fla. 4th DCA 1991); Carillo v. State, 382 So. 2d 429 (Fla. 3d DCA 1980).
Second, the defendant complains about three improper comments made by the prosecuting attorney in final argument to the jury, (a) One of these comments was not objected to at trial by the defendant (TR. 764-65) and, accordingly, the point has not been properly preserved for appellate review; moreover, no fundamental error has been shown with reference to this comment. Clark v. State, 363 So. 2d 331 (Fla.1978); Jones v. State, 571 So. 2d 1374 (Fla. 1st DCA 1990). (b) Another of the complained-of comments was fleeting in nature, relates primarily to the co-defendant in this case and otherwise presents no reversible error as to the defendant (TR. 767-68). (c) The remaining comment was objected to by the defendant, the objection was sustained, a motion for mistrial was denied, but a cautionary instruction was given.
Moreover, the totality of the complained-of comments did not compel, as urged, a mistrial; did not deprive the defendant of a fair trial; and do not present fundamental error — especially in view of the extensive evidence of guilt presented at trial, which, evidence was never contradicted by any defense evidence. Stated differently, we are convinced beyond a reasonable doubt that there is no reasonable possibility that any of these comments [either individually or collectively] contributed to the verdict. State v. DiGuilio, 491 So. 2d 1129 (Fla.1986); Wilcher v. State, 524 So. 2d 1105 (Fla. 3d DCA 1988).
Third, the state concedes, and we agree, that it was unlawful for the trial court to impose consecutive mandatory minimum sentences on the defendant under Section 775.084(4)(b), Florida Statutes (1989), after declaring the defendant a habitual violent felony offender, for (1) burglary of a structure with an assault [15-year mandatory minimum], and (2) six counts of false imprisonment [5-year mandatory minimum]. Without dispute, all of these crimes were committed in a single criminal episode, and, under such circumstances, it has been held that the mandatory minimum sentences provided under Section 775.084(4)(b) for a habitual violent felony offender must be imposed concurrently, and cannot be imposed consecutively, Daniels v. State, 595 So. 2d 952 (Fla.1992).
In all fairness to the trial judge, this decision, although controlling, was rendered subsequent to the trial in this case.
Finally, we find no merit in the defendant’s contention that he could not be sentenced separately for each of the crimes for which he was convicted, with each term of imprisonment to run consecutively. Under Section 775.021(4)(a), Florida Statutes (1989), a defendant may be sentenced separately for criminal offenses arising, as here, in the course of one criminal transaction or episode, which sentences may be imposed concurrently or consecutively, absent certain exceptions. Contrary to the defendant’s contention, the six convictions for false imprisonment do not qualify for the statutory exception as to “[o]ffenses which require identical elements of proof.” § 775.021(4)(b)(l), Fla.Stat. (1989).
Without dispute, each of the six false imprisonment offense involved a different victim and therefore did not require identical elements of proof. James v. State, 453 So. 2d 786, 793 (Fla.), cert. denied, 469 U.S. 1098, 105 S.Ct. 608, 83 L.Ed.2d 717 (1984); Norris v. State, 429 So. 2d 688, 690 (Fla.1983); see also Palmer v. State, 438 So. 2d 1 (Fla.1983) (finding no error in separate, consecutive sentences for simultaneous robbery of thirteen different victims).
The final judgments of conviction and sentences under review are affirmed, save for the mandatory minimum sentences imposed for each of the convictions herein. As to the latter, such sentences are modified so that they run concurrently, rather than consecutively.
Affirmed as modified.
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Kendal Major, Jr. v. State, 979 So. 2d 243 (Fla. 3d DCA 2007)…149, 1151 (Fla.1979)(holding that the trial court did not err in failing to conduct a Richardson hearing where “defense counsel brought the state’s non-compliance to the attention of the court, [but] did not interpose an objection”); Simon v. State, 615 So. 2d 236, 237 (Fla. 3d DCA 1993)(finding that the trial court did not err in failing to conduct a Richardson hearing where the defendant failed to object when a police officer testified about evidence which was not admitted); Taylor v. State, 589 So. 2d 918,…
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Cliff Berry, Inc. v. State, 116 So. 3d 394 (Fla. 3d DCA 2012)…n been made and authorities cited contrary to his understanding of the law. Under the circumstances, the trial judge was not required to make further inquiry. Lucas, 376 So. 2d 1151-52 (emphasis added). This Court also concluded in Simon v. State, 615 So. 2d 236, 237 (Fla. 3d DCA 1993), that the trial court did not err by failing to conduct a Richardson hearing where the defendant faded to object while the witness was testifying, and the co-defendant, who did object, did not object on the ground of a discov…
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State v. Perez, 718 So. 2d 912 (Fla. 5th DCA 1998)…vehicular homicide,7 that does not mean the jury in this case rejected the reckless [*916] driving element in Count I as well as Count II. A defendant can be convicted of more than one crime committed during a “criminal episode.” See Simon v. State, 615 So. 2d 236 (Fla. 3d DCA 1993) (a defendant can be sentenced separately for criminal offenses arising in the course of one criminal transaction or episode — here six false imprisonments of six different victims); Damon v. State, 397 So. 2d 1224 (Fla. 3d DCA 198…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited (14 total)
- State v. DiGUILIO, 491 So. 2d 1129 (Fla. 1986)
- Richardson v. State, 246 So. 2d 771 (Fla. 1971)
- Clark v. State, 363 So. 2d 331 (Fla. 1978)
- Dean v. Publix Supermarkets, Inc., 438 So. 2d 1 (Fla. 1983)
- Berlie Daniels, Jr. v. State, 595 So. 2d 952 (Fla. 1992)
- Lucas v. State, 376 So. 2d 1149 (Fla. 1979)
- Davidson Joel James v. State, 453 So. 2d 786 (Fla. 1984)
- Derwin Norris v. State, 429 So. 2d 688 (Fla. 1983)
- Neal v. Mississippi, 469 U.S. 1098 (U.S. 1984)
- Brown v. Newsome, 469 U.S. 1098 (U.S. 1984)