ROBERT MCKEE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Robert McKee appealed his conviction for lewd and lascivious act on a child and contributing to the delinquency of a child, arguing that the trial court erroneously excluded evidence showing the alleged victims' bias and failed to re-read testimony when the jury requested clarification. The appellate court affirmed the conviction but remanded for correction of a potential scrivener's error regarding the length of probation.
The trial court did not err on either ground. The evidence of the defendant's rebuff was actually admitted at trial, contrary to the defendant's claim, and defense counsel used it during closing argument. The trial court did not abuse its discretion in instructing the jury to rely on their own memory rather than re-reading testimony.
[1] A trial court does not abuse its discretion by refusing to re-read testimony to the jury when the defendant fails to demonstrate prejudice from the refusal.
[2] Evidence of a victim's alleged homosexual advances toward the defendant is admissible to show the victim's bias.
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Join FLexlaw to unlock all legal intelligence“the trial court permitted this evidence, defense counsel attacked the victims' credibility on this ground during closing argument”
Demonstrates that the defendant's primary argument for reversal—that evidence was excluded—was factually incorrect, as the evidence was actually admitted and used
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Join FLexlaw to unlock all legal intelligenceRobert McKee was convicted of lewd and lascivious act on a child and contributing to the delinquency of a child. The trial involved testimony from all…
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PER CURIAM.
The defendant, Robert McKee, appeals his conviction for lewd and lascivious act on a child and contributing to the delinquency of a child. We affirm the conviction and remand for correction of a possible scrivener’s error. The defendant asserts that the trial court’s exclusion of evidence of the defendant’s rebuff of the alleged homosexual advances by one of the victims was reversible error because such evidence shows the victims! bias. See Arias v. State, 593 So. 2d 260, 264 (Fla. 3d DCA 1992); see generally Jaggers v. State, 536 So. 2d 321, 327 (Fla. 2d DCA 1988) (holding that evidence relevant to a witness’s possible bias, prejudice, motive or intent is nearly always necessary to inform the jury of any improper motives of a prosecuting witness in determining that witness’s credibility). However, the transcript of the defendant’s trial establishes that the complained of evidentiary exclusion did not occur. Not only did the trial court permit this evidence, defense counsel attacked the victims’ credibility on this ground during closing argument. Absent evidentiary support, we find no merit in the defendant’s argument on this issue.
The defendant’s second argument for reversal is the trial court’s failure to read back the testimony of the victims when the jury asked the trial court to “clear up a discrepancy between” the deposition testimony and the trial testimony. The trial court, instead, instructed the jurors to “rely upon your own memory regarding the testimony of the witnesses.” We find no merit in this argument as well because the defendant failed to demonstrate that the trial court abused its broad discretion in not re-reading the requested testimony to the jury. See Coleman v. State, 610 So. 2d 1283, 1286 (Fla. 1992); see also Fla. R.Crim. P. 3.410.
However, the State identified a potential scrivener’s error which should be addressed upon remand. The written order of probation imposes six years’ probation, in conflict with the written sentence, the trial court minutes, and the sentencing guidelines, all of which reflect five years’ probation. We are unable to review the trial court’s oral pronouncement because the sentencing transcript is not part of our appellate record. If the trial court imposed only five years’ probation, the order of probation must be corrected.
We remand for the trial court to enter a corrected order of probation if, in fact, it is in error. The defendant need not be present.
Conviction affirmed; remanded with directions.
FULMER, A.C.J., and NORTHCUTT and CASANUEVA, JJ., concur.
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Carlton A. Francis v. State, 808 So. 2d 110 (Fla. 2001)…t was requested was that of the State’s key witness. Additionally, courts have found no abuse of discretion even where the trial judge has, without much consideration, entirely rejected the jury’s request for a read back. See, e.g., McKee v. State, 712 So. 2d 837, 838 (Fla. 2d DCA 1998) (holding that trial judge who failed to read back testimony of victim upon jury’s request, but instead told jurors to rely on their own memory, did not abuse his broad discretion). Courts have consistently found no abuse of d…
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Amendments TO Fla. Rules OF Crim. Procedure 3.111(e) & 3.800 & Fla. Rules OF App. Procedure 9.020(h), 791 So. 2d 525 (Fla. 2001)…rrecting scrivener's error that resulted from the written sentence not identifying the defendant as a habitual offender although the court had orally pronounced a habitual offender sentence), review denied, 732 So. 2d 328 (Fla.1999); McKee v. State, 712 So. 2d 837 (Fla. 2d DCA 1998) (remanding for the trial court to determine whether a scrivener’s error occurred where the written order of probation imposed six years’ probation, which conflicted with the written sentence and the trial court minutes that reflec…1 / 2
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Hendricks v. State, 34 So. 3d 819 (Fla. 1st DCA 2010)…t has observed that “courts have found no abuse of discretion even where the trial judge has, without much consideration, entirely rejected the jury’s request for a read back.” Francis v. State, 808 So. 2d 110, 130 (Fla.2001) (citing McKee v. State, 712 So. 2d 837, 838 (Fla. 2d DCA 1998)). Despite the wide latitude a trial court is accorded in exercising its discretion to either read back testimony or not, a trial court “may not mislead the jury into thinking that a readback is prohibited.” Avila, 781 So. 2d…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Jaggers v. State, 536 So. 2d 321 (Fla. 2d DCA 1988)
- Coleman v. State, 610 So. 2d 1283 (Fla. 1992)
- Arias v. State, 593 So. 2d 260 (Fla. 3d DCA 1992)