OSCAR NERES JONES, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE

Fla. 1st DCA | 1995-05-18
No. 93-4174
MINER and BENTON, JJ, concur.
655 So. 2d 187 Florida District Court of Appeal, First District (1995) Positive Treatment
Cited by 2 cases
Topics
Attempted Robbery Motion For New Trial Prosecutorial Misconduct Fundamental Error

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Opinion of the Court
ERVIN, Judge.

ERVIN, Judge.

Appellant raises five issues challenging his attempted robbery conviction. We affirm the first two regarding jury instructions and the denial of his motion for new trial based on Ray v. State, 403 So. 2d 956 (Fla.1981). The third issue regarding prosecutorial misconduct during cross-examination of a defense witness and closing argument was not preserved for appellate review and does not constitute fundamental error; therefore, we affirm as to that issue. We also affirm appellant’s fourth issue asserting ineffective assistance of trial counsel, see Loren v. State, 601 So. 2d 271 (Fla. 1st DCA 1992), but we do so without prejudice to appellant’s right to file a motion pursuant to Florida Rule of Criminal Procedure 3.850.

We reverse the fifth issue and remand with directions to correct the judgment to reflect that appellant was convicted of attempted robbery, in violation of sections 812.13 and 777.04, Florida Statutes (Supp. 1992 & 1991), not section 812.12.

AFFIRMED in part, REVERSED in part and REMANDED for further proceedings.

MINER and BENTON, JJ, concur.

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Citator

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  • Harden v. State, 958 So. 2d 1155 (Fla. 5th DCA 2007)
    …this court reversed Harden’s sentence and remanded for resentencing, determining that the trial court should not have assessed points for legal constraint because he was not under legal constraint for sentencing guidelines purposes. Harden v. State, 655 So. 2d 187 (Fla. 5th DCA 1995). At resentencing, the trial court again imposed an aggregate prison sentence of 27 years. According to Harden, [*1156] the court “achieved this result by going into the permitted range.” Harden appealed his resentencing to this c…
  • Chance v. State, 100 So. 3d 1253 (Fla. 5th DCA 2012)
    …on improper prosecu-torial conduct, defense counsel must object, and if the objection is sustained he must then request a curative instruction or mistrial; he cannot await the outcome of the trial to seek the relief of a new trial.); Jones v. State, 655 So. 2d 187 (Fla. 1st DCA 1995) (“The third issue regarding prosecutorial misconduct during cross-examination of a defense witness and closing argument was not preserved for appellate review and does not constitute fundamental error; therefore, we affirm as to…

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