RICHARD ALAN DORMAN, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Richard Alan Dorman was convicted of attempted manslaughter and aggravated battery with a deadly weapon, and unlawful possession of a weapon while engaged in criminal offense. On appeal, Dorman challenged a prosecutor's closing argument comment as an impermissible reference to his right to remain silent, and the court affirmed his convictions for the first two counts but reversed the weapons conviction based on double punishment principles.
The court held that the prosecutor's comment was not an impermissible comment on Dorman's right to remain silent, but rather a permissible comment on the lack of testimony to support the defendant's self-defense contention. However, the court reversed Dorman's conviction for unlawful possession of a weapon while engaged in criminal offense because using the weapon as the basis for enhancing convictions for attempted manslaughter and aggravated battery constitutes improper double punishment.
[1] A prosecutor's comment during closing argument referring to the inability to know a defendant's intent or reasons for actions is a permissible comment on the lack of evid…
[2] A conviction for unlawful possession of a weapon while engaged in a criminal offense cannot stand when the use of that weapon is the basis for enhancing other convictions…
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Join FLexlaw to unlock all legal intelligence“the prosecutor's comment was not a comment on the defendant's right to remain silent, but rather a permissible comment on the lack of testimony to support the defendant's contention that he acted in self-defense”
Establishes the court's holding that the challenged prosecutor statement was permissible as a comment on lack of testimony rather than on the right to remain silent
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Join FLexlaw to unlock all legal intelligenceDorman was charged with attempted second degree murder with a deadly weapon, aggravated battery with a deadly weapon, and unlawful possession of a wea…
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PER CURIAM.
The defendant, Richard Alan Dorman, was charged with attempted second degree murder with a deadly weapon, aggravated battery with a deadly weapon, and unlawful possession of a weapon while engaged in a criminal offense. The defendant did not testify at trial. During closing argument, defense counsel argued that the defendant acted in self-defense and his actions were the result of a bar room brawl. During closing argument, the State argued the following: “I submit to you that this man was never provoked. We can’t get in the head of the defendant. I don’t know why he went to get that knife. All I know is he did go get the knife for no legal reasons.” The defendant’s objection to this statement and motion for mistrial were denied.
The jury found the defendant guilty of attempted manslaughter with a deadly weapon, a lesser included offense of attempted second degree murder with a deadly weapon; aggravated battery with a deadly weapon; and unlawful possession of a weapon while engaged in a criminal offense. This appeal follows.
The defendant contends that the trial court erred in denying his motion for mistrial where the State commented on the defendant’s right to remain silent during closing argument. We disagree.
In Kirby v. State, 625 So. 2d 51 (Fla.3d DCA 1993), the defendant argued that the following comment made by the prosecutor during closing argument was an impermissible comment on his right to remain silent: “Now what did the defendant intend when he did what he did that night? Well, I can’t take his head and crack it open and mark it for an exhibit, to show you what was in his head that night.” This court found that the challenged comment “was a permissible reference to the absence of testimony to support the defendant’s contention that he did not intend to sexually batter the victim, rather than an impermissible comment on the defendant’s failure to testify.” Kirby, 625 So. 2d at 55.
In the instant case, the prosecutor’s comment is very similar to the comment made by the prosecutor in Kirby. We ñnd, as did the Kirby court, that the prosecutor’s comment was not a comment on the defendant’s right to remain silent, but rather a permissible comment on the lack of testimony to support the defendant’s contention that he acted in self-defense.
As the State properly concedes, the trial court erred in convicting and sentencing the defendant for unlawful possession of weapon while engaged in a criminal offense where the use of the weapon is the basis for enhancing the defendant’s convictions and sentences for attempted manslaughter and aggravated battery. Cleveland v. State, 587 So. 2d 1145 (Fla.1991).
Accordingly, we affirm the defendant’s convictions and sentences for attempted manslaughter with a deadly weapon and aggravated battery with a deadly weapon; but reverse his conviction and sentence for unlawful possession of a weapon while engaged in a criminal offense.
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State v. Allister Jones, 867 So. 2d 398 (Fla. 2004)…of the defendant’s right to remain silent. See also State v. Dix, 723 So. 2d 351 (Fla. 5th DCA 1998) (prosecutor’s statement regarding defendant’s admission did not constitute comment on his exercise of the right to remain silent); Dorman v. State, 638 So. 2d 589 (Fla. 3d DCA 1994) (prosecutor’s statement on the lack of testimony to support defendant’s claim of self-defense was not a comment on the defendant’s exercise of his right to remain silent); Minnis v. State, 505 So. 2d 17 (Fla. 3d DCA 1987) (prosecu…
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MacKey v. State, 703 So. 2d 1183 (Fla. 3d DCA 1997)…A 1993)(quoting State v. Sheperd, 479 So. 2d 106, 107 (Fla.1985)). See Barwick v. State, 660 So. 2d 685, 694 (Fla.1995), cert. denied, 516 U.S. 1097, 116 S.Ct. 823, 133 L.Ed.2d 766 (1996); White v. State, 377 So. 2d 1149 (Fla.1979); Dorman v. State, 638 So. 2d 589 (Fla. 3d DCA 1994). Accordingly, the trial court properly denied Mackey’s mistrial motions. Finally, Mackey argues that the trial court erred in using a 1991 scoresheet rather than a 1994 scoresheet in imposing a departure sentence on the aggravate…
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Allister Jones v. State, 821 So. 2d 473 (Fla. 4th DCA 2002)…of the defendant’s right to remain silent. See also State v. Dix, 723 So. 2d 351 (Fla. 5th DCA 1998) (prosecutor's statement regarding defendant’s admission did not constitute comment on his exercise of the right to remain silent); Dorman v. State, 638 So. 2d 589 (Fla. 3d DCA 1994) (prosecutor’s statement on the lack of testimony to support defendant’s claim of self defense was not a comment on the defendant’s exercise, of his right to remain silent); Minnis v. State, 505 So. 2d 17 (Fla. 3d DCA 1987) (prosec…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Quinten L. Cleveland v. State, 587 So. 2d 1145 (Fla. 1991)
- Kirby v. State, 625 So. 2d 51 (Fla. 3d DCA 1993)