STEVEN KIVETT, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Steven Kivett appeals his conviction for manslaughter with a firearm and tampering with evidence. The Florida District Court of Appeal affirms, rejecting his challenges to the sufficiency of evidence, the trial court's denial of his motion for judgment of acquittal, and his claims that prosecutorial misconduct and improper character testimony warranted mistrial.
The trial court properly denied the motion for judgment of acquittal because there was legally sufficient evidence for the jury to base its guilty verdict. The trial court properly denied the motions for mistrial because the prosecutor's closing argument was not so prejudicial as to vitiate the entire trial, and the trial court's jury instructions to disregard improper comments were adequate remedies under controlling precedent.
[1] A defendant's flight occurring before an appeal does not justify dismissal of that appeal.
[2] A trial court properly denies a motion for judgment of acquittal when legally sufficient evidence exists upon which a jury could base a guilty verdict.
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Establishes the standard for denying a motion for judgment of acquittal and finding the evidence sufficient to support conviction.
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Join FLexlaw to unlock all legal intelligenceSteven Kivett was convicted of manslaughter with a firearm and tampering with evidence. During trial, the prosecution presented evidence and closing a…
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PER CURIAM.
The defendant, Steven Kivett, appeals from a final judgment of conviction and sentence for manslaughter with a firearm and tampering with evidence. We affirm.
Because the defendant’s flight occurred before this appeal, his flight does not justify dismissal of this appeal. Ortega-Rodriguez v. United States, — U.S. —, 113 S.Ct. 1199, 122 L.Ed.2d 581 (1993); contra State v. Gurican, 576 So. 2d 709 (Fla.1991). Therefore, we consider the merits of the defendant’s appeal.
First, the defendant contends that the trial court should have granted a judgment of acquittal because the evidence was inconclusive. However, there was legally sufficient evidence upon which the jury could base its guilty verdict. The trial court properly denied the motion for judgment of acquittal. Jones v. State, 466 So. 2d 301 (Fla. 3d DCA 1985), approved, 485 So. 2d 1283 (Fla.1986); Pressley v. State, 395 So. 2d 1175 (Fla. 3d DCA), rev. denied, 407 So. 2d 1105 (Fla.1981).
The defendant next contends that the trial court should have granted his motion for mistrial because the prosecutor’s closing argument deprived him of a fair trial. We disagree.
A motion for mistrial is addressed to the sound discretion of the trial judge and should only be granted in cases of absolute necessity. Salvatore v. State, 366 So. 2d 745 (Fla.1978), cert. denied, 444 U.S. 885, 100 S.Ct. 177, 62 L.Ed.2d 115 (1979). Moreover, a mistrial should be granted only in circumstances where “the error committed was so prejudicial as to vitiate the entire trial.” Duest v. State, 462 So. 2d 446, 448 (Fla.1985); see also Solomon v. State, 596 So. 2d 789, 790 (Fla. 3d DCA 1992).
In the instant case, there was no absolute necessity to declare a mistrial. The closing argument was not so prejudicial as to vitiate the entire trial.
The defendant also contends that the trial court should have granted his motion for mistrial because much of the testimony presented amounted to character attacks. However, after every improper comment the trial court instructed the jury to disregard the comment. Thus, under Buckles v. State, 567 So. 2d 40 (Fla. 3d DCA 1990) and Williams v. State, 354 So. 2d 112 (Fla. 3d DCA 1978), no mistrial was warranted.
Finally, we find that the defendant’s remaining contentions lack merit. According ly, we affirm the defendant’s conviction and sentence.
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Talley v. State, 260 So. 3d 562 (Fla. 3d DCA 2019)
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Franky St. Louis Joseph v. State, 704 So. 2d 1149 (Fla. 3d DCA 1998)…uired a mistrial. Our review of the record leads us to conclude that the strong curative instruction promptly given by the trial court alleviated any possible prejudice, thus the court correctly denied the mistrial motion. See, e.g. Kivett v. State, 629 So. 2d 249 (Fla. 3d DCA 1993). Finding no merit in Joseph’s other contention we affirm his conviction. Affirmed.…
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Jarrett v. State, 654 So. 2d 973 (Fla. 1st DCA 1995)…t 712. We believe deciding the present appeal is fully consonant with the teachings of Gurican. The present case is distinguishable from Gurican in that appellant was back in custody before the motion for new trial was decided. See Kivett v. State, 629 So. 2d 249 (Fla. 3d DCA 1993). His absence did not delay judgment, sentence, or time for appeal in the way Gurican’s absence did. Appellant did not “escape[ ] from the restraints placed upon him pursuant to the conviction.” Molinaro, 396 U.S. at 366, 90 S.Ct.…
Previewing 3 of 8 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited (12 total)
- LeDuc v. Florida, 444 U.S. 885 (U.S. 1979)
- Salvatore v. State, 366 So. 2d 745 (Fla. 1978)
- Duest v. State, 462 So. 2d 446 (Fla. 1985)
- Ortega-Rodriguez v. United States, 507 U.S. 234 (U.S. 1993)
- Irven George Pressley v. State, 395 So. 2d 1175 (Fla. 3d DCA 1981)
- Jones v. State, 466 So. 2d 301 (Fla. 3d DCA 1985)
- State v. Gurican, 576 So. 2d 709 (Fla. 1991)
- State v. Suarez, 485 So. 2d 1283 (Fla. 1986)
- State v. Jones, 485 So. 2d 1283 (Fla. 1986)
- Federick Solomon v. State, 596 So. 2d 789 (Fla. 3d DCA 1992)