JULIAN R. FITZGERALD, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Fitzgerald was convicted of burglary and possession of burglary tools after being discovered by police attempting to open a safe with an acetylene torch in a furniture store. On appeal, he challenged the admission of character evidence and the sufficiency of evidence for the possession charge, but the court affirmed his conviction on both grounds.
The admission of character evidence was error, but the error was not preserved on appeal because the defendant made no objection and failed to raise a fundamental error exception. The evidence of possession of burglary tools was sufficient because constructive possession by all defendants of the torch, which obviously belonged to one of them, supports the conviction.
“Clearly, this testimony was irrelevant and should have been excluded. However, the defendant made no objection to this testimony and the trial court failed to strike or exclude its sua sponte.”
Establishes that while the character evidence was error, the failure to object waived appellate review absent fundamental error.
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Join FLexlaw to unlock all legal intelligenceFitzgerald and three companions were attempting to open a safe in a furniture store using an acetylene torch when police discovered them. They fled bu…
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The defendant was charged with and convicted of the crimes of burglary and possession of burglary tools.
The defendant and his three companions were in the process of opening a safe located within a furniture store when they were discovered by the police. Upon realizing that they had been discovered they fled the building but were later apprehended. An acetylene torch was discovered inside the store near the safe and burn marks were visible on the safe.
The defendant chose to represent himself at the trial even though a public defender was appointed to represent him. Following a jury verdict of guilty, defendant was convicted as charged and this appeal followed.
The defendant advances for our consideration two questions. The first question concerns testimony presented by the state which disparaged defendant’s character. The defendant had not placed his character in issue and the testimony adduced shed no light on motive, intent, absence of mistake, common scheme, identity or a system or general pattern of criminality. Apparently, the testimony was introduced for the purpose of showing the bad character or criminal propensity of the accused. Clearly, this testimony was irrelevant and should have been excluded. However, the defendant made no objection to this testimony and the trial court failed to strike or exclude its sua sponte. The normal rule is that error committed by the trial court cannot be raised on appeal unless timely objection was made at the trial level. Jalbert v. State, Fla.1957, 95 So.2d 589. An exception to this rule is made for jurisdictional or fundamental error, but we do not find that the admission of this testimony falls within the exception. It should be remembered that counsel was appointed to represent defendant, but defendant discharged his counsel and elected to represent himself.
The defendant in his second question challenges the sufficiency of the evidence upon which he was convicted of the possession of burglary tools. The defend*513ant urges that the evidence shows only that he was in the same building where the acetylene torch was used. This is sufficient. The state is not required to prove that the acetylene torch was in the actual possession of one defendant as opposed to the others. Obviously, the torch belonged to one of the defendants. The fact that they were all in constructive, if not actual, possession of the tool is sufficient to support this conviction. Estevez v. State, Fla.App. 1966, 189 So.2d 830.
Affirmed.
ALLEN and SHANNON, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Powell v. State, 208 So. 2d 146 (Fla. 4th DCA 1968)…us it might well have been considered at the time that the testimony in question was useful to the defendant. It is well-settled that questions of this character may not be raised for the first time on appeal. See Fitzgerald v. State, Fla.App.1967, 203 So. 2d 511. The second question is: “The Court committed error in failing to strike the testimony of the witness, Jack Bushor, over objection of the defense when Jack Bushor testified that he had seen the defendant strike the victim’s wife, Mrs. Marie Hill.”…
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Mesenbrink v. State, 231 So. 2d 852 (Fla. 3d DCA 1970)…under § 810.06, supra, which have been affirmed on appeal have shown situations wherein the convicted defendant below was in immediate possession of the tools. Eg., Brown v. State, 98 Fla. 871, 124 So. 467 (1929); Fitzgerald v. State, Fla.App.1967, 203 So. 2d 511; Estevez v. State, Fla.App.1966, 189 So. 2d 830. It is our opinion that the evidence, i. e., the tools which were seized in the appel [*853] lant’s apartment, was insufficient to show his intent to feloniously use the tools for criminal purposes. T…
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Fitzgerald v. State, 210 So. 2d 222 (Fla. 1968)…Certiorari denied without opinion. 203 So. 2d 511.…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Jalbert v. State, 95 So. 2d 589 (Fla. 1957)
- Estevez v. State, 189 So. 2d 830 (Fla. 2d DCA 1966)