ARCHIE SCOTT, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Archie Scott appeals his conviction for aggravated assault. The court affirmed the conviction but vacated the sentence and remanded for resentencing due to errors in calculating sentencing guidelines and jail time credit.
The conviction is affirmed because the trial court properly found that premature jury comments did not affect the verdict and the prosecutor's remarks were either not timely objected to or insufficient to warrant a new trial. However, sentencing is vacated and remanded because the trial court imposed sentence without a completed guidelines scoresheet and failed to properly credit jail time served.
[1] A trial court's finding regarding juror improprieties is entitled to deference when supported by an evidentiary hearing transcript.
[2] A contemporaneous objection and request for a curative instruction are required to preserve for appeal claims of prosecutorial misconduct during closing arguments.
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Join FLexlaw to unlock all legal intelligence“The defendant was in no way denied his constitutional right to a fair and impartial trial.”
Establishes that premature jury discussions, though improper, did not violate defendant's constitutional rights because the trial court's findings showed they did not affect the verdict.
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Join FLexlaw to unlock all legal intelligenceScott and his father fought, with the father claiming Scott threw two liquor bottles at him and hit him with a curbstone. Scott was charged with two c…
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PER CURIAM.
Defendant appeals his conviction and sentence for aggravated assault. We affirm defendant’s conviction but vacate the sentence and remand for resentencing.
The incident upon which defendant’s conviction is based occurred when defendant and his father fought. The father claimed his son had thrown two liquor bottles at him and hit him with a curbstone. Defendant was charged with two counts of aggravated assault, one count of aggravated battery, and one count of simple battery. At his jury trial, at the close of the evidence, defendant’s motions for acquittal were granted as to all counts except count three, aggravated battery. Defendant claims a number of erroneous rulings by the trial court mandate reversal of his conviction entered thereafter and vacation of his sentence.
First, defendant complains that while he was arguing for acquittal he heard the jury arguing about the facts of-the case. When counsel brought the improper discussion to the trial judge’s attention, at trial the judge ignored the claim and denied defendant’s motion for mistrial. Next, the defense claims that the prosecutor committed reversible error by making prejudicial statements to the jury during closing. Third, the defense points out that while defendant’s prior record was in dispute, the trial judge relied on the comments of counsel, and used a blank scoresheet when calculating defendant’s recommended guidelines sentence. Finally, according to defendant, although he was incarcerated fifty days prior to imposition of his sentence, he was given credit for only five days of prior incarceration.
Addressing the above points, as to defendant’s claim of premature deliberations, we observe that the trial court ultimately conducted a post-judgment evidentiary hearing to consider the defendant’s claim. This hearing demonstrated that several jurors, prior to their final deliberations, made some comments among themselves as to defendant’s innocence or guilt. Ultimately, each said these improprieties were quickly terminated and did not contribute to the ultimate verdict itself. The court so found and a review of the transcript of that hearing leads us to conclude that the trial court’s decision is entitled to be honored. Doyle v. State, 460 So. 2d 353 (Fla.1984); Orosz v. State, 389 So. 2d 1199 (Fla. 1st DCA 1980). The defendant was in no way denied his constitutional right to a fair and impartial trial. Alfonso v. State, 443 So. 2d 176 (Fla. 3d DCA 1983).
Next, at trial, a contemporaneous objection and request for curative instruction are required to place the court on notice that a potential error may have been committed and to give the court the opportunity to correct any alleged error by allowing the court to either instruct the jury correctly on the law, if it has been misstated, or to instruct the jury to disregard a remark. Walton v. State, 547 So. 2d 622 (Fla.1989), cert, denied, 493 U.S. 1036, 110 S.Ct. 759, 107 L.Ed.2d 775 (1990). Here, the offending remarks during the prosecution’s closing statement were either not directly objected to, or not objected to timely, or standing alone, were insufficient to warrant a new trial. See Riechmann v. State, 581 So. 2d 133 (Fla.1991), cert, denied, — U.S. -, 113 S.Ct. 405, 121 L.Ed.2d 331 (1992); Duest v. State, 462 So. 2d 446 (Fla.1985).
Third, the record below clearly reflects, and the state concedes, that the trial court imposed sentence upon the defendant without benefit of a completed guidelines scoresheet. Under these circumstances, the matter must be remanded for a full hearing. Lamb v. State, 532 So. 2d 1051 (Fla.1988); Disinger v. State, 526 So. 2d 213 (Fla. 5th DCA 1988); Fla.R.Crim.P. 3.701(d)(1). Also, in imposing sentence, the trial court did not announce on the record the amount of credit the defendant was to receive and it is impossible to determine what documentation was utilized to determine the amount awarded. Since there is a factual dispute, the matter is remanded for the trial court to hold a hearing on the correct number of days the defendant should be credited for time served.
Accordingly, defendant’s conviction is affirmed, and the case is remanded for resentencing in light of the statements made herein.
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Citator
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Johnson v. State, 696 So. 2d 317 (Fla. 1997)…did, in fact, take place clearly indicates an impropriety. See Amazon v. State, 487 So. 2d 8, 11-12 (Fla.1986) (indicating that a juror’s comment to an alternate juror was more than improper, it was indeed presumptively prejudicial); Scott v. State, 619 So. 2d 508, 509 (Fla. 3rd DCA 1993) (labeling premature deliberations, in the form of jury comments, as improper); Brooks v. Herndon Ambulance Service, 510 So. 2d 1220, 1221 (Fla. 5th DCA 1987) (finding premature jury discussions to be improper). We have said…
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Fryer v. State, 693 So. 2d 1046 (Fla. 3d DCA 1997)….. he knows that his client is guilty,” was improper in every conceivable way. Most significantly, it is not a fair comment on the evidence, the only acceptable subject of closing arguments. Duest v. State, 462 So. 2d 446 (Fla.1985); Scott v. State, 619 So. 2d 508 (Fla. 3d DCA 1993). Next, because the defense attorney had just concluded his summation in which he told the jury that the evidence had failed to prove his client guilty, the prosecutor’s statement constituted a direct attack on the defense attorney…
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Ramirez v. State, 922 So. 2d 386 (Fla. 1st DCA 2006)…efore hearing all of the evidence. "[O]nce a prima facie case of potential prejudice has been established, the burden is on the State to rebut the ... presumption of prejudice.” Johnson, 696 So. 2d [317] at 323 [(Fla.1997)]; see also Scott v. State, 619 So. 2d 508, 509 (Fla. 3d DCA 1993); Broolcs v. Herndon Ambulance Serv., 510 So. 2d 1220, 1221 (Fla. 5th DCA 1987).…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Duest v. State, 462 So. 2d 446 (Fla. 1985)
- Doyle v. State, 460 So. 2d 353 (Fla. 1984)
- Walton v. State, 547 So. 2d 622 (Fla. 1989)
- Lamb v. State, 532 So. 2d 1051 (Fla. 1988)
- Dieter Riechmann v. State, 581 So. 2d 133 (Fla. 1991)
- Orosz v. State, 389 So. 2d 1199 (Fla. 1st DCA 1980)
- Krozser v. Connecticut, 493 U.S. 1036 (U.S. 1990)
- Disinger v. State, 526 So. 2d 213 (Fla. 5th DCA 1988)
- Raymundo Alfonso v. State, 443 So. 2d 176 (Fla. 3d DCA 1983)