JOHN PROKOS AND SHIRLEY CONDAS, A/K/A SHIRLEY PROKOS, APPELLANTS,
v.
THE STATE OF FLORIDA, APPELLEE
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Appellants Prokos and Condas were convicted of operating a gambling house and bookmaking. They appealed challenging the denial of a mistrial motion and suppression of evidence obtained via search warrants. The court affirmed the convictions, finding no abuse of discretion and that the search warrant affidavit met statutory requirements.
The trial court did not abuse its discretion in denying the mistrial motion where it properly struck the hearsay testimony and instructed the jury to disregard it. The search warrant affidavit sufficiently met statutory requirements by setting forth facts upon which the reason or belief that gambling was being conducted in the dwelling was based. Other contentions regarding sufficiency of evidence and admission of evidence were without merit.
“The matter of the granting or denial of the motion for mistrial was largely in the discretion of the trial judge, and it has not been shown that his discretion was exceeded or abused in this instance.”
Establishes that trial court has broad discretion in mistrial decisions and appellants bore the burden of showing abuse of that discretion.
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Join FLexlaw to unlock all legal intelligenceAppellants were informed against, tried, and convicted of operating a gambling house and bookmaking. A directed verdict was entered in their favor on …
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The appellants were informed against, tried and convicted of operating a gambling house and of bookmaking. Appellants seek reversal as to the former of those offenses. A directed verdict was entered in their favor on two counts of the information which charged them with violations of § 822.10 Fla.Stat., F.S.A., dealing with injuring or tapping telegraph or telephone lines.
One contention is that it was an abuse of discretion to deny a motion for mistrial made by the defendants after the granting of their motion to strike the testimony of the Division Security Manager of the Southern Bell Telephone Company. His testimony related to the telephone wiring and equipment alleged to have been used. Defendants’ motion to strike was on the ground it was hearsay, based on investigations and reports made by others which had been communicated to the witness. Upon granting the defendants’ motion to strike, the trial judge explained the basis for his ruling and adequately instructed the jury not to consider any part of the stricken testimony in their deliberations and determination of the case. The matter of the granting or denial of the motion for mistrial was largely in the discretion of the trial judge, and it has not been shown that his discretion was exceeded or abused in this instance. Morris v. State, 100 Fla. 850, 130 So. 582; Perry v. State, 146 Fla. 187, 200 So. 525; Garcia v. State, Fla.App.1962, 142 So.2d 318.
Appellants’ second contention is that the court committed error by denying their motions to suppress the evidence obtained on the two search warrants on the ground that one of the warrants through the exercise of *485which evidence was obtained was for search of a private dwelling, and was issued without a proper predicate. Appellants argue the supporting affidavit was insufficient in that it failed to “set forth the facts on which such reason or belief is based,” the reason or belief stated in the affidavit being that gambling was being conducted in the dwelling described. See Parnell v. State, Fla.App.1967, 204 So.2d 910, 911-912, and cases cited there. We hold, however, on examining the affidavit, that it amply met the requirements of the statute (§ 933.18 Fla.Stat., F.S.A.) to set forth facts on which such reason or belief was based.
The remaining contentions of the appellants, challenging the sufficiency of the evidence to sustain the conviction and the admission of certain evidence over objection, 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 is affirmed.
Affirmed.
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Salvatore v. State, 366 So. 2d 745 (Fla. 1978)…a.1976); Paramore v. State, 229 So. 2d 855 (Fla.1969); modified on other grounds, 408 U.S. 935, 92 S.Ct. 2857, 33 L.Ed.2d 751 (1972); Tate v. Gray, 292 So. 2d 618 (Fla.2d DCA 1974); Warren v. State, 221 So. 2d 423 (Fla.2d DCA 1969); Prokos v. State, 209 So. 2d 484 (Fla.3d DCA 1968); Baisden v. State, 203 So. 2d 194 (Fla.4th DCA 1967); Garcia v. State, 142 So. 2d 318 (Fla.2d DCA 1962). In this State the rule has been long established and continuously adhered to that the power to declare a mistrial and discharg…
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Jackson v. State, 419 So. 2d 394 (Fla. 4th DCA 1982)….1976); Paramore v. State, 229 So. 2d 855 (Fla.1969); modified on other grounds, 408 U.S. 935, 92 S.Ct. 2857, 33 L.Ed.2d 751 (1972); Tate v. Gray, 292 So. 2d 618 (Fla.2d DCA 1974); Warren v. State, 221 So. 2d 423 (Fla. 2d DCA 1969); Prokos v. State, 209 So. 2d 484 (Fla.3d DCA 1968); Baisden v. State, 203 So. 2d 194 (Fla.4th DCA 1967); Garcia v. State, 142 So. 2d 318 (Fla.2d DCA 1962). In this State the rule has been long established and continuously adhered to that the power to declare a mistrial and discharg…
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Thad Tate, Jr. v. Gray, 292 So. 2d 618 (Fla. 2d DCA 1974)…nd answers. The granting or denying of a motion for mistrial is largely in the discretion of the trial judge. Garcia v. State, Fla.App.2d 1962, 142 So. 2d 318; Ellingson v. Willis, Fla.App.1st 1964, 170 So. 2d 311; Prokos v. State, Fla.App.3d 1968, 209 So. 2d 484. Appellants have failed to show an abuse of this discretion by the trial judge. Appellants also asked for a mistrial when appellees’ counsel in his closing argument to the jury termed certain acts of the occupants of the automobile as criminal acts…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Morris v. State, 100 Fla. 850 (Fla. 1930)
- Perry v. State, 146 Fla. 187 (Fla. 1941)
- Garcia v. State, 142 So. 2d 318 (Fla. 2d DCA 1962)
- Hiram Cazes Parnell v. State, 204 So. 2d 910 (Fla. 3d DCA 1967)