FRANCIS FERRIS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Appellant Ferris was convicted of DUI and appealed on three grounds: the admission of a videotape of the incident, the prosecutor's argument about 'actual physical control' of the vehicle, and the jury instruction on this element. The Fourth District Court of Appeal affirmed the conviction, finding no preserved error and no harmless error.
The court affirmed on all issues. The videotape issue was not preserved because appellant failed to articulate any prejudicial statements in the record. The 'actual physical control' language is a correct statement of law under § 316.193(1), Fla. Stat., and even if it were error, it would be harmless given abundant evidence of appellant driving under the influence.
[1] An issue regarding the prejudicial impact of evidence is not preserved for appeal if it was not argued in the trial court.
[2] A defendant must articulate prejudicial statements contained within a videotape to preserve an issue regarding its exclusion.
Previewing 2 of 4 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“This language is a correct statement of law and thus does not constitute error. See § 316.193(1), Fla. Stat. (1997). Even if it were error, it was harmless.”
Establishes that the 'actual physical control' language in the jury instruction and closing argument accurately states the law and, in any event, would be harmless error.
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Join FLexlaw to unlock all legal intelligenceOfficer made a videotape of a DUI incident. Appellant was observed driving while intoxicated. The state's sole theory was that appellant was driving t…
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PER CURIAM.
Appellant was convicted of D.U.I. and appeals on three grounds. He argues that the trial court erred in admitting a videotape of the incident, in allowing the prosecutor to argue in closing that he had “actual physical control of the vehicle” and in providing a jury instruction to the same effect. We affirm on all issues.
Prior to trial, appellant sought to exclude the audio portion of a videotape of the D.U.I. incident on the grounds that the officer who made the tape and spoke thereon would not be testifying at trial. However, the defense has neglected to include in the record a copy of the tape and failed to articulate at trial, in his brief, or otherwise, any prejudicial statements contained therein. Therefore, the issue is not preserved. See Mitchell v. State, 734 So. 2d 450, 452 (Fla. 4th DCA 1999)(issue of whether evidence should be excluded due to its prejudicial impact was not preserved where not argued below); see also Applegate v. Barnett Bank of Tallahassee, 377 So. 2d 1150, 1152 (Fla.1979).
In his second point, appellant notes that the trial court, on its own, changed the standard jury instruction on the first element of D.U.I. The standard instruction requires either that the defendant was “unlawfully driving” or was “in actual physical control of a vehicle.” Because the state’s sole theory was that appellant was observed actually driving the vehicle while intoxicated, the trial court deleted the language “in actual physical control of’ from the instruction, believing it would confuse the jury. As a result of this change, appellant claims that the trial court erred in allowing the state to argue in closing that the first element of D.U.I. requires either that the defendant was “unlawfully driving” or was “in actual physical control of a vehicle.” Appellant also claims that it was error to include this phrase in the jury instruction. The trial court included the language when reading what the state charged, but deleted “actual physical control” when instructing on the element of the offense.
This language is a correct statement of law and thus does not constitute error. See § 316.193(1), Fla. Stat. (1997). Even if it were error, it was harmless. See § 924.051(7). Appellant has failed to show any resulting prejudicial harm and there was abundant evidence of appellant driving under the influence. We therefore affirm.
WARNER, C.J., STONE, J., and COX, CYNTHIA L., Associate Judge, concur.
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Citator
Authorities Cited
- Pitcher v. Schneider (Fla. 5th DCA 2018)
- Albert v. Applegate et ux., 377 So. 2d 1150 (Fla. 1979)
- Mitchell v. State, 734 So. 2d 450 (Fla. 4th DCA 1999)