VAUGHN MONROE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Vaughn Monroe was convicted by jury of throwing a deadly weapon at an occupied vehicle under Florida law. On appeal, Monroe challenged the admission of prior incident testimony and the trial court's refusal to instruct the jury on assault as a lesser included offense, but the appellate court affirmed the conviction, finding the prior incident testimony harmless error and assault not a necessarily included offense.
The court held that the prior incident testimony constituted harmless error because the trial judge immediately struck it and instructed the jury to disregard it, so Monroe's substantial rights were not injuriously affected. The court also held that assault is not a necessarily included offense or a lesser included offense of throwing a deadly weapon at an occupied vehicle.
“upon close analysis it will be found that in these cases the test applied is whether or not the error committed injuriously affected the substantial rights of the appellant”
Establishes the standard for reviewing claimed trial errors, applying the substantial rights test from prior Florida cases
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Join FLexlaw to unlock all legal intelligenceMonroe was charged with throwing a deadly weapon at an occupied vehicle in Pinellas County. During trial, Officer Solitaire testified that Monroe was …
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Appellant was charged in an information issued in Pinellas County with throwing a deadly weapon at an occupied vehicle 1. He was tried and found guilty by a jury. This appeal followed.
Appellant urges two points in this appeal. The first concerns the testimony of Officer Solitaire who testified in answer to a question by the prosecution that appellant, Vaughn Monroe, “was involved in a same type incident prior to that.” Appellant argues that this statement was grounds for a mistrial because it labeled *210defendant as a troublemaker and urges denial of his timely motion for mistrial as error. He cites Simmons v. State, 1939, 139 Fla. 645, 190 So. 756; Gluck v. State, Fla.1952, 62 So.2d 71; Jones v. State, Fla. App.1967, 194 So.2d 24; Jordan v. State, Fla.App.1965, 171 So.2d 418; Dixon v. State, Fla.App.1966, 191 So.2d 94; Green v. State, Fla.App.1966, 190 So.2d 42; and Wilson v. State, Fla.App.1965, 171 So.2d 903, in support of this contention. However, upon close analysis it will be found that in these cases the test applied is whether or not the error committed injuriously affected the substantial rights of the appellant. This principle was applied in each of these cases and we apply it here.
When the officer testified the trial judge immediately granted a motion to strike the testimony and clearly advised the jury that they were to disregard that part of the officer’s testimony. Therefore, we do not believe that the substantial rights of the appellant were injuriously affected. We believe the case falls within the principle laid down in Gay v. City of Orlando, Fla.App.1967, 202 So.2d 896, cert. denied, 390 U.S. 956, 88 S.Ct. 1052, 19 L.Ed.2d 1149, and Zide v. State, Fla.App. 1968, 212 So.2d 788. The testimony given by the officer constituted harmless error and did not deprive the appellant of a fair trial.
Appellant urges that the trial judge erred in not instructing the jury on the lesser included offense of assault. The question of lesser included offenses has been adequately treated by the Florida Supreme Court in Brown v. State, Fla. 1968, 206 So.2d 377. It is not necessary for the State to prove an assault in order to prove that appellant violated Section 790.19, F. S.A. Thus, by applying the test laid down in Brown, we hold that assault is not a necessarily included offense of throwing a deadly weapon at an occupied vehicle. Likewise, we hold that assault is not a lesser included offense based upon the accusatory pleadings and the evidence of this case.
For the foregoing reasons the judgment is affirmed.
HOBSON, J., and ALLEN, J., (Ret.) concur.
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Williams v. State, 438 So. 2d 152 (Fla. 3d DCA 1983)…ss); Rhome v. State, 222 So. 2d 431 (Fla.3d DCA 1969) (instruction to jury to disregard statement by police officer that there were “some other circumstances involving the defendant” sufficient to overcome possibility of prejudice); Monroe v. State, 218 So. 2d 209 (Fla.2d DCA 1969) (testimony of police officer that the defendant “was involved in the same type of incident prior to that” harmless error in view of the court’s instruction to the jury to disregard the testimony); Kelly v. State, 202 So. 2d 901 (Fl…
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Williams v. State, 233 So. 2d 428 (Fla. 3d DCA 1970)…further circumstance that the testimony of an officer relating to identification of the de [*429] fendant by photograph, in the course of which the reference was made to mug shots, represented cumulative evidence. See Monroe v. State, Fla.App.1969, 218 So. 2d 209; Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284. Affirmed.…
Authorities Cited (12 total)
- Brown v. State, 206 So. 2d 377 (Fla. 1968)
- Gay v. City of Orlando, 390 U.S. 956 (U.S. 1968)
- Simmons v. State, 139 Fla. 645 (Fla. 1939)
- Green v. State, 190 So. 2d 42 (Fla. 2d DCA 1966)
- Gluck v. State, 62 So. 2d 71 (Fla. 1952)
- Jones v. State, 194 So. 2d 24 (Fla. 3d DCA 1967)
- Zide v. State, 212 So. 2d 788 (Fla. 3d DCA 1968)
- Wilson v. State, 171 So. 2d 903 (Fla. 2d DCA 1965)
- Coral Constr. Corp. v. Death a Fleeman Arlt, 191 So. 2d 94 (Fla. 3d DCA 1966)
- GAY v. The City OF Orlando, 202 So. 2d 896 (Fla. 4th DCA 1967)