JOSEPH CHANCE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Joseph Chance appeals his conviction for lewd and lascivious molestation of a child under age twelve, arguing the prosecutor improperly shifted the burden of proof by questioning why he disclosed defense details only at trial. The court affirms, finding that because trial counsel failed to timely object or request a mistrial, the issue was not preserved for appeal and did not constitute fundamental error.
The court affirms the conviction, holding that because defense counsel failed to timely preserve the issue through contemporaneous objection, request for curative instruction, or mistrial motion, the appellate court's review is limited and no fundamental error is found in the prosecutor's conduct.
[1] A claim of improper prosecutorial conduct is not preserved for appellate review if defense counsel fails to contemporaneously object to the conduct at trial or request a…
[2] A trial court's discretion to grant a new trial is substantially narrowed when the basis for the new trial is a non-preserved, non-fundamental error.
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Join FLexlaw to unlock all legal intelligence“The law is clear that, in order to preserve a claim based on improper prosecutorial 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.”
Establishes the preservation requirement for prosecutorial misconduct claims in Florida.
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Join FLexlaw to unlock all legal intelligenceJoseph Chance was convicted of lewd and lascivious molestation of a child under age twelve. During trial, the prosecutor asked Chance why he was just …
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Joseph Chance appeals his conviction for lewd and lascivious molestation of a child under age twelve. He argues that the trial court abused its discretion in failing to grant his motion for new trial after the prosecutor shifted the burden of proof by asking Chance why he was just disclosing details of his defense for the first time at trial and whether he had physical evidence and witnesses present to corroborate some collateral matters to which he testified. Although Chance raised this issue in a motion for new trial, his trial counsel failed to contemporaneously object to the questions or argument at trial, or request a mistrial, thus failing to preserve the issue for review. See, e.g., State v. Fritz, 652 So.2d 1243, 1244 (Fla. 5th DCA 1995) (“The law is clear that, in order to preserve a claim based 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 that issue.”); cf. State v. Cameron, 837 So.2d 1111, 1112 (Fla. 4th DCA 2003) (“[T]he trial court’s discretion to grant a new trial is substantially narrowed when the basis for the new trial is a non-preserved, non-fundamental error.”). Carefully considering the prosecutor’s improper questions and comments in light of the entire trial, we find no fundamental error, see Spencer v. State, 842 So.2d 52, 74 (Fla.2008), and affirm.
AFFIRMED.
GRIFFIN, PALMER and LAWSON, JJ., concur.
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Cited By
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Kimble v. State (Fla. 1st DCA 2025)
Authorities Cited
- Dusty Ray Spencer v. State, 842 So. 2d 52 (Fla. 2003)
- State v. Fritz, 652 So. 2d 1243 (Fla. 5th DCA 1995)
- State v. Cameron, 837 So. 2d 1111 (Fla. 4th DCA 2003)
- Jones v. State, 655 So. 2d 187 (Fla. 1st DCA 1995)
- Harden v. State, 655 So. 2d 187 (Fla. 5th DCA 1995)