STEPHEN A. MASSENGALE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Stephen Massengale appeals his DUI-related manslaughter and other convictions, challenging prosecutorial comments about his right not to testify and the imposition of a mandatory prosecution cost. The court affirmed the convictions under harmless error analysis but reversed the $100 prosecution cost as an improper ex post facto application.
The improper prosecutorial comments are subject to harmless error analysis, and the State met its burden of showing no reasonable possibility the error affected the verdict. However, the $100 prosecution cost must be reversed and remanded for striking because imposing it violates ex post facto principles when applied retroactively to crimes committed before the statute became effective.
[1] A prosecutor's improper comment on a defendant's constitutional right not to testify is subject to harmless error analysis.
[2] The State bears the burden of proving beyond a reasonable doubt that an error did not affect the verdict.
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Join FLexlaw to unlock all legal intelligence“The effect of the State's improper remarks is subject to "harmless error" analysis.”
Establishes the legal standard applied to prosecutorial misconduct regarding constitutional rights
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Join FLexlaw to unlock all legal intelligenceMassengale was convicted of manslaughter by DUI, driving with a suspended/revoked license, DUI causing damage to property, and DUI causing serious bod…
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Stephen Massengale appeals his convictions for manslaughter by driving under the influence (DUI), driving with a license suspended or revoked, DUI causing damage to a person or property, and DUI causing serious bodily injury. Appellant contends that the trial court erred by denying a motion for mistrial after the prosecutor improperly commented in opening statement about Appellant’s constitutional right not to testify. The effect of the State’s improper remarks is subject to “harmless error” analysis. See State v. DiGuilio, 491 So.2d 1129 (Fla.1986); Holloman v. State, 573 So.2d 134 (Fla. 2d DCA 1991). Concluding that the State has met its burden under DiGuilio to show there is no reasonable possibility that this error affected the verdict, we affirm the convictions. See DiGuilio, 491 So.2d at 1135.
Appellant also asserts error in the trial court’s imposition of the mandatory cost of prosecution ($100.00) pursuant to section *1096988.27(8), Florida Statutes (2008). The State properly concedes error because the offenses of which Appellant was convicted occurred before this authorizing statute became effective. Ex post facto principles are implicated where a statute is applied retroactively to impose a cost or surcharge and the length of a defendant’s sentence can be increased by the failure to pay. See Griffin v. State, 980 So.2d 1085, 1037 (Fla.2008). As payment of this $100.00 fíne is a condition of Appellant’s probation, the failure to pay it could result in revocation of his probation.
We AFFIRM the judgment and sentence, except for the $100.00 fine at issue, which we REVERSE and REMAND to the trial court with directions to strike it from the judgment of fines.
WOLF, LEWIS, and RAY, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Sims v. State, 110 So. 3d 975 (Fla. 1st DCA 2013)…ction 938.27(8), Florida Statutes, must be stricken given that the offense was committed prior to the effective date of the 2008 amendment which imposed a mandatory cost of no less than $100 when a felony offense is charged. See Massengale v. State, 69 So. 3d 1095, 1095 (Fla. 1st DCA 2011) (accepting the appellant’s argument that the trial court erred in imposing the mandatory $100 cost of prosecution pursuant to the 2008 version of section 938.27(8) because the appellant’s offenses were committed before the…
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Crapser v. State, 148 So. 3d 794 (Fla. 1st DCA 2014)…section 938.27(8), Florida Statutes (2008), must be stricken because appellant’s offenses were committed before July 1, 2008, the effective date of the authorizing statute. Sims v. State, 110 So. 3d 975, 976 (Fla. 1st DCA 2013); Massengale v. State, 69 So. 3d 1095 (Fla. 1st DCA 2011). AFFIRMED in part; REVERSED in part; and REMANDED for further proceedings. ROBERTS, MARSTILLER, and SWANSON, JJ., concur.…
Authorities Cited
- State v. DiGUILIO, 491 So. 2d 1129 (Fla. 1986)
- Straub v. Lehtinen, Vargas & Riedi, P.A., 980 So. 2d 1085 (Fla. 4th DCA 2007)
- Holloman v. State, 573 So. 2d 134 (Fla. 2d DCA 1991)