ROBERT MONTANA, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Robert Montana appeals his conviction for burglary and grand larceny, challenging six points of error. The appellate court affirmed his conviction, finding that four points were substantially identical to issues already decided in a companion case, and that the remaining two points failed to demonstrate reversible error.
The trial court did not err. The decision to allow or deny a reservation of opening statement is within the trial judge's discretion, and Montana failed to show prejudicial error or abuse of discretion. Testimony concerning a criminal plan in which the appellant participated and was present for is not hearsay, regardless of the witness's status as a co-actor.
“The court held the matter to be entirely within the discretion of the trial judge.”
Establishes that decisions regarding opening statements are discretionary and not subject to reversal absent an abuse of discretion.
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Join FLexlaw to unlock all legal intelligenceRobert Montana was tried jointly with Johnny Randall Anderson for entering a dwelling house without breaking with intent to commit grand larceny, and …
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The appellant, Robert Montana, appeals from a judgment and sentence entered after a jury trial. He was adjudged guilty of entering a dwelling house, without breaking, with intent to commit a felony (grand larceny) and of grand larceny. He was sentenced to five years confinement upon the first count and two years upon the second. The sentences are to run concurrently. The appellant was tried with Johnny Randall Anderson, whose appeal has already been considered by this court (Anderson v. State, Fla.App.1969, Third District, 223 So.2d 770).
Montana presents six points on this appeal. Four of them are substantially the same as four issues decided on this same record in Anderson’s appeal. We find it unnecessary to discuss these points again. Appellant’s points 1, 2, 4, and 6 are held not to present reversible error upon authority of Anderson v. State, above.
Appellant’s point 3 urges that the trial court erred in denying his request to reserve his opening statement until the conclusion of the state’s case in chief. No authority is furnished for the appellant’s position. The same argument was presented in Allen v. Hooper, 126 Fla. 458, 171 So. 513, 515 (1937), a civil case. The court held the matter to be entirely within the discretion of the trial judge. Appellant has not undertaken to show the manner in which the denial of his request prejudiced him. He has therefore failed to show prejudicial error. He has also failed to show an abuse of discretion. Cf. State v. Strickland, Fla.App.1965, 172 So.2d 260; Atkins v. State, Fla.App.1968, 210 So.2d 9.
Appellant’s remaining point urges that the court erred in denying his objection to the testimony of witness Labree upon the ground that the testimony was hearsay. Labree was a co-actor in the plan to commit the crimes. Appellant was present during the conversation when the plan was put into final form. He executed his part of the plan, the actual entry and asportation of the property. Testimony concerning the development and execution of a criminal plan in which the appellant participated is not hearsay. Baldwin v. State, 46 Fla. 115, 35 So. 220 (1903).
Affirmed.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Allen v. Hooper, 126 Fla. 458 (Fla. 1936)
- Emery Baldwin and Albert Tillman v. State, 46 Fla. 115 (Fla. 1903)
- State v. Strickland, 172 So. 2d 260 (Fla. 2d DCA 1965)
- Atkins v. State, 210 So. 2d 9 (Fla. 1st DCA 1968)
- Anderson v. State, 223 So. 2d 770 (Fla. 3d DCA 1969)