DONALD LEE BURKHEAD, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Donald Lee Burkhead was convicted by jury of assault with intent to commit rape and sentenced to six months to twenty years. On appeal, he challenged the trial court's failure to charge the jury on assault and battery as a lesser included offense and the admission of prejudicial prosecutor argument, but the appellate court affirmed the conviction.
The court held no reversible error occurred. First, although trial courts have a duty to charge on lesser included offenses, failure to do so without timely objection or request from the defendant, and with the defendant's counsel's consent, is not reversible error. Second, the prosecutor's remark was not incurable error where the trial judge sustained the objection, instructed the jury to base their verdict solely on the evidence, and no mistrial was warranted.
“However, the failure to charge thereon, when request is not made, is not necessarily reversible error.”
Establishes that the trial court's omission of a lesser included offense instruction, absent timely objection and with counsel's consent, does not constitute reversible error.
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Join FLexlaw to unlock all legal intelligenceBurkhead was tried on an indictment for rape. The jury found him guilty of the lesser offense of assault with intent to commit rape. The trial judge e…
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The appellant was tried on an indictment for rape. A jury found him guilt of assault with intent to commit rape. Adjudication of guilt was entered thereon and a sentence of six months to twenty years’ confinement was imposed.
On this appeal by the defendant a number of contentions are made. One is that the trial judge committed reversible error by failing to give a jury charge on assault and battery as a lesser included offense of the crime of rape. Charges were given on the lesser included offenses of assault with intent to commit rape and assault.
It is indeed the duty of the trial court to charge on lesser included offenses. See § 919.16 Fla.Stat., F.S.A. and Jimenez v. State, 158 Fla. 719, 30 So.2d 292. However, the failure to charge thereon, when request is not made, is not necessarily reversible error. See Flagler v. State, Fla.1967, 198 So.2d 313 and Brown v. State, Fla.1968, 206 So.2d 377.
Here no timely objection was made by defendant to the absence of the charge, as provided for and required by § 918.10(4). Flagler v. State, supra. Moreover, the record discloses that counsel for the defendant and the trial judge agreed that a charge on assault and battery should not be given, and thus defendant’s counsel consented to that omission by the court. Flagler v. State, supra. We hold, therefore, that no reversible error was committed in this respect.
A further contention of the appellant is that the trial court committed reversible error in refusing to grant a mistrial following the statement by the prosecutor in argument that “There is a general feeling in this community that there is no justice.” The attorney for the defendant objected and moved for mistrial. The motion for mistrial was denied but the objection was sustained, whereupon the trial judge stated: “For the benefit of the jury, I have sustained the objection, and I instruct you to base your verdict solely upon the evidence in this case, and that alone.” We hold, on authority of Morris v. State, 100 Fla. 850, 130 So. 582, that in the circumstances presented, the court dealt with *692the matter properly, and that the prosecutor’s remark did not represent an error which could not be cured by the instruction given by the trial judge with reference thereto.
Additional contentions of the appellant have been considered in the light of the record and briefs, and are found to be without merit.
No reversible error having been made to appear, the judgment appealed from is affirmed.
Affirmed.
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Citator
Cited By (18 total)
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Ricks v. State, 242 So. 2d 763 (Fla. 3d DCA 1971)…were the subject of an objection by defense counsel, which at all times were sustained by the trial court. No request for an instruction to disregard the remarks was made. Morris v. State, 100 Fla. 850, 130 So. 852; Burkhead v. State, Fla.App.1968, 206 So. 2d 690. As to the second point, error is urged in the failure of the trial court to grant a mistrial because of certain testimony presented to the jury. At the time of the trial, a police officer [who was a witness to the accident] was permitted to tes [*…
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Whitehead v. State, 245 So. 2d 94 (Fla. 2d DCA 1971)…supra. . See, e. g., Croft v. State, (1935), 117 Fla. 832, 158 So. 454; and Motley, n. 3, supra. . See, e. g., Johnson v. State, (Fla.App. 1969), 229 So. 2d 13; Jerry v. State, (Fla.App.1968), 213 So. 2d 440; and Burkhead v. State, (Fla.App.1968), 206 So. 2d 690.…
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Henry v. State, 277 So. 2d 78 (Fla. 2d DCA 1973)…ing error on appeal. See, Flagler v. State, 198 So. 2d 313 (Fla.1967); McPhee v. State, 254 So. 2d 406 (1st D.C.A.Fla.1971); Johnson v. State, 229 So. 2d 13 (4th D.C.A.Fla.1969); Jerry v. State, 213 So. 2d 440 (2d D.C.A.Fla.1968); Burkhead v. State, 206 So. 2d 690 (3d D.C. A.Fla.1968). But see, Whitehead v. State, 245 So. 2d 94, 99 (2d D.C.A.Fla.1971); Williams v. State, 247 So. 2d 425 (Fla.1971). See also, F.A.R. 6.7(g). Applying the foregoing holdings to the instant case, it is apparent that the defendant…
Previewing 3 of 18 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Brown v. State, 206 So. 2d 377 (Fla. 1968)
- Morris v. State, 100 Fla. 850 (Fla. 1930)
- Jimenez v. State, 158 Fla. 719 (Fla. 1947)
- Flagler v. State, 198 So. 2d 313 (Fla. 1967)