A.C. CLARK, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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A.C. Clark appeals his convictions for possession of a firearm by a convicted felon and direct criminal contempt. The court affirmed the firearm conviction but reversed the contempt conviction due to the trial judge's failure to comply with procedural requirements.
The court affirmed the firearm conviction, finding valid race-neutral reasons for the peremptory challenges and that the curative instruction was proper. The court reversed the contempt conviction because the trial judge failed to comply with Florida Rule of Criminal Procedure 3.830, which requires inquiry into mitigating circumstances and recital of factual basis.
[1] Simultaneous jury selection for multiple unrelated cases is permissible.
[2] A prosecutor's peremptory challenges are permissible if supported by race-neutral reasons.
Previewing 2 of 5 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“The trial judge merely informed the jurors that there was no evidence before them that the woman had made a sworn statement admitting that she was the one who possessed the gun on the day in question.”
Explains that the curative instruction was proper and did not improperly comment on witness credibility
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Join FLexlaw to unlock all legal intelligenceAn officer testified that he observed Clark place a pistol under a chair cushion and arrested him. A defense witness testified he saw a woman with a g…
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PER CURIAM.
A.C. Clark appeals his convictions of possession of a firearm by a convicted felon and direct criminal contempt. We affirm in part and reverse in part.
Appellant contends that the trial judge erred by conducting simultaneous jury selection for appellant’s case and two unrelated cases involving other defendants. The issues raised by appellant regarding this procedure have been previously rejected by this Court. Rock v. State, 622 So. 2d 487 (Fla. 1st DCA 1993).
Appellant argues that the trial judge abused his discretion in permitting the prosecutor to exercise peremptory challenges to strike three black veniremen from the jury. The record, however, supports the trial judge’s determination that the prosecutor had valid, race-neutral reasons for exercising the peremptory challenges.
An officer testified at trial that he observed appellant place a pistol under the cushion of a chair and that he placed him under arrest. A defense witness testified that he saw a woman holding a gun; when the police approached, it appeared she placed something under the chair, but he did not see the object. As the prosecutor was calling a witness in rebuttal, appellant stood and stated: “Jurors, here is a statement from that lady. She testified she put that gun under there.” After discussion with counsel, the trial judge gave the following curative instruction:
Members of the jury, before the recess the defendant stood up and waived a piece of paper and he made a statement to you about what someone else allegedly said. Insofar as you the jury are concerned there is no such statement because you will only consider the sworn testimony as it comes to you from the witness stand, and you will disregard anything that the defendant said or did during that incident.
Appellant now argues that this instruction was an improper comment on the credibility of the only defense witness. This argument is meritless. The trial judge did not instruct the jury that there was no evidence that the woman possessed the gun or that they should disregard the testimony of the defense witness. The trial judge merely informed the jurors that there was no evidence before them that the woman had made a sworn statement admitting that she was the one who possessed the gun on the day in question.
In response to the appellant’s outburst, the trial judge found appellant to be in contempt of court. In doing so, the trial judge failed to comply with Florida Rule of Criminal Procedure 3.830. The trial judge failed to inquire as to whether appellant had any cause to show why he should not be adjudged guilty of contempt and failed to give appellant the opportunity to present excusing or mitigating circumstances. The judgment of guilt of contempt did not include a recital of the facts upon which the adjudication of guilt was based. The state concedes that reversal is necessary.
The conviction and sentence imposed for possession of a firearm by a convicted felon is AFFIRMED. The conviction of contempt of court is REVERSED without prejudice regarding the institution of proper contempt proceedings.
BOOTH, BARFIELD and ALLEN, JJ., concur.
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Doyle Williams v. State, 698 So. 2d 1350 (Fla. 1st DCA 1997)…the written judgment of contempt requires reversal. We stressed that this requirement of rule 3.830 assures compliance with the longstanding rule that the powers of contempt should be exercised with care and circumspection. See also Clark v. State, 625 So. 2d 68 (Fla. 1st DCA 1993). The Third and Fourth Districts have also followed our decision in Johnson and issued consistent holdings. See Montoya v. State, 695 So. 2d 873 (Fla. 3d DCA 1997); Cook v. State, 636 So. 2d 895 (Fla. 3d DCA 1994); Schenck v. Stat…
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Royster v. State, 668 So. 2d 346 (Fla. 1st DCA 1996)…judicated guilty of contempt and failed to give appellant an opportunity to present excusing or mitigating evidence, as required by Florida Rules of Criminal Procedure 3.830, the judgment of direct criminal contempt must be REVERSED. Clark v. State, 625 So. 2d 68, 69 (Fla. 1st DCA 1993). Our reversal is without prejudice to the institution of proper contempt proceedings. JOANOS, BENTON and VAN NORTWICK, JJ., concur.…
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Marshall v. State, 764 So. 2d 908 (Fla. 1st DCA 2000)…pportunity to present excusing or mitigating evidence, as required by Florida Rule of Criminal Procedure 3.830, the judgment of direct criminal contempt must be reversed. See Royster v. State, 668 So. 2d 346, 346 (Fla. 1st DCA 1996); Clark v. State, 625 So. 2d 68, 69 (Fla. 1st DCA 1993); O’Neal v. State, 501 So. 2d 98, 100 (Fla. 1st DCA 1987). Our reversal is “without prejudice to the institution of proper contempt proceedings.” Royster, 668 So. 2d at 346. BOOTH and BENTON, JJ., CONCUR; WOLF, J„ SPECIALLY…
Authorities Cited
- Rock v. State, 622 So. 2d 487 (Fla. 1st DCA 1993)