ROBERT ROCCO COSTANTINO, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Robert Costantino was convicted of breaking and entering with intent to commit grand larceny and sentenced to fifteen years. He appealed on grounds that the trial court erred in excluding an alibi witness's deposition and denying his motion for mistrial based on jury exposure to physical evidence, but the court affirmed the conviction.
The trial court did not err in excluding the alibi witness's deposition because it did not establish that the defendant was with the witness during the entire time his presence was required to accomplish the crime. Regarding the mistrial motion, the court could not determine whether any prejudice was cured by the photographs because the photographs were not included in the appellate record.
“The defense of an alibi, to be available, must cover the entire time when the presence of the defendant was required to accomplish the crime.”
Establishes the legal standard for alibi defenses that the court applied to reject the defendant's alibi witness testimony.
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Join FLexlaw to unlock all legal intelligenceCostantino was convicted of breaking and entering with intent to commit grand larceny. The building owner and three witnesses testified that Costantin…
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The appellant, Costantino, defendant below, was convicted of breaking and entering with the intent to commit grand larceny and sentenced to fifteen years in the State Penitentiary. This appeal followed.
The defendant seeks reversal of his conviction on the ground that the trial judge erred in refusing to admit into evidence the deposition of a witness who was absent from the State of Florida at trial. He claims that this witness would have established an alibi for him, in that they were together at a bar during the critical time.
The testimony of the owner of the building and three witnesses establishes that the defendant was in their presence from 1:30 A.M. until approximately 1:54 A.M. on the date in question. The testimony proffered by way of deposition from the alibi witness was vague, uncertain and indecisive as to the time that the defendant was with the alibi witness. The record reveals that on cross-examination, the “alibi witness” admitted that the defendant left the bar where they were together at approximately 1:30 A.M. and that he was alone. The building broken into was within close walking distance of the bar and on the way to the residence of the defendant.
The defense of an alibi, to be available, must cover the entire time when the presence of the defendant was required to accomplish the crime. Blackwell v. State, 79 Fla. 709, 86 So. 224, 15 A.L.R. 465 (1920); Caldwell v. State, 50 Fla. 4, 39 So. 188 (1905); Jones v. State, Fla.App.1961, 128 So.2d 754.
The testimony of the “alibi witness”, even if admitted into evidence by deposition, does not sufficiently establish that the defendant was with the “alibi witness” during the entire time his presence was required under the law.
Defendant’s next argument for reversal is directed toward the denial by the trial court of his motion for mistrial. During the trial the defendant moved for a mistrial, claiming that he was prejudiced by the jury having seen a piece of a door frame from the building in question and that it had “pry marks” on it. The piece of wood was excluded from evidence on technical grounds and defendant says that the effect of the jury seeing it was so prejudicial as to require reversal of the conviction. The court, in denying the motion for mistrial, stated that if any prejudicial error had occurred, it had been cured by the proper introduction in evidence of two photographs which showed certain pieces “of that exhibit for identification”, i. e., the piece of wood from the door frame.
*343The proper question before us on this appeal, under these circumstances, is whether the trial judge was correct in his ruling that the prejudice, if any, was cured by the introduction of the two photographs into evidence. We are unable to determine this question because the two photographs are not in the record on appeal. The appellant may not present an alleged error for appellate consideration on an incomplete record if the omitted matter might affect the determination of the reviewing court. Nelson v. State, Fla.1956, 85 So.2d 832; Albritton v. State, 54 Fla. 6, 44 So. 745 (1907).
We have examined the other points argued by the defendant for reversal and find them to be without merit.
The judgment and sentence of the trial court are
Affirmed.
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Citator
Cited By (14 total)
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Khalid Ali Pasha v. State, 225 So. 3d 688 (Fla. 2017)…include and cover the entire time when the presence of the accused was required to commit the offense charged.” Murphy v. State, 31 Fla. 166, 12 So. 453, 454 (1893); accord Caldwell v. State, 50 Fla. 4, 39 So. 188, 191 (1905); Constantino v. State, 224 So. 2d 341, 342 (Fla. 3d DCA 1969); Jones, 128 So. 2d at 755. Contra Williams v. State, 395 So. 2d 1236, 1238 (Fla. 4th DCA 1981). Evidence in support of an alibi “must be such as to render it impossible that the crime could have been committed by the party th…
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Montalvo v. State, 323 So. 2d 674 (Fla. 3d DCA 1975)…to discharge. It repeatedly has been held that an appellant may not present an alleged error for appellate consideration on an incomplete record if the matter might affect the determination of the reviewing court. Costantino v. State, Fla.App.1969, 224 So. 2d 341, 343 and Royal Flair, Inc. v. Cape Coral Bank, Fla.App.1971, 251 So. 2d 895. The defendant having failed to appear at the arraignment, the burden devolved upon him to establish at the hearing on his motion for discharge by competent proof his conti…
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Burau v. State, 353 So. 2d 1183 (Fla. 3d DCA 1977)…court’s determination of the alleged prejudicial error and, therefore, having failed to present a record showing a basis for reversal, is not entitled to such reversal. See Farrington v. State, 207 So. 2d 513 (Fla. 3d DCA 1968); Costantino v. State, 224 So. 2d 341 (Fla. 3d DCA 1969). Affirmed. . For example, the transcripts of the hearings of July 8 and 14, 1975 have been omitted.…
Previewing 3 of 14 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Will Blackwell and Robert Blackwell v. The State of Floirda, 79 Fla. 709 (Fla. 1920)
- Caldwell v. State, 50 Fla. 4 (Fla. 1905)
- Nelson v. State, 85 So. 2d 832 (Fla. 1956)
- Albritton v. State, 54 Fla. 6 (Fla. 1907)
- Jones v. State, 128 So. 2d 754 (Fla. 2d DCA 1961)