JOSE OSCAR PEREZ, JR., APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
LaROSE, Judge.
Jose Oscar Perez, Jr., appeals his conviction for second-degree murder with a firearm. He argues that the trial court erroneously denied his new trial motion after the prosecutor asked a question that Mr. Perez claims improperly shifted the burden of proof to the defense. Mr. Perez failed to preserve this issue for appeal; he did not move for a mistrial after the trial court sustained his objection to the question and gave a curative instruction. See Sloan v. State, 438 So. 2d 888, 890 (Fla. 2d DCA 1983); Newton v. S. Fla. Baptist Hosp., 614 So. 2d 1195, 1196 (Fla. 2d DCA 1993). We also conclude that no fundamental error occurred at trial. See Maddox v. State, 760 So. 2d 89, 95-96 (Fla.2000).
Affirmed.
CANADY and VILLANTI, JJ., Concur.
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Perez v. State, 29 So. 3d 1227 (Fla. 2d DCA 2010)…not its decision — on the direct appeal. See Anton v. State, 976 So. 2d 6, 8 (Fla. 2d DCA 2008) (citing Ward v. Dugger, 508 So. 2d 778, 779 (Fla. 1st DCA 1987)). This court affirmed Mr. Perez’s direct appeal on August 10, 2007. See Perez v. State, 964 So. 2d 744 (Fla. 2d DCA 2007). The mandate, however, did not issue until October 15, 2007. Thus, Mr. Perez’s motion for postconviction relief, which was filed on September 17, 2009, was timely. Accordingly, we reverse the postconviction court’s order and rem…
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Fagan v. State, 96 So. 3d 1023 (Fla. 4th DCA 2012)…igation to object and request a mistrial. If counsel fails to object or if, after having objected, fails to move for a mistrial, his silence will be considered an implied waiver.” See Nixon v. State, 572 So. 2d 1336, 1340 (Fla.1990); Perez v. State, 964 So. 2d 744, 744 (Fla. 2d DCA 2007). Unpreserved error is reviewed for fundamental error. “Fundamental error is defined as error that ‘reaches down into the validity of the trial itself to the extent that a verdict of guilty could not have been obtained withou…
Authorities Cited
- Maddox v. State, 760 So. 2d 89 (Fla. 2000)
- Newton v. S. Fla. Baptist Hosp. & Paul K. Perry, M.D., 614 So. 2d 1195 (Fla. 2d DCA 1993)
- Sloan v. State, 438 So. 2d 888 (Fla. 2d DCA 1983)