HAROLD RAYMOND HOOKS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Harold Hooks appeals his conviction for sale and possession of LSD by way of a habeas corpus petition after his direct appeal became untimely. The appellate court addressed the sufficiency of evidence and whether the trial court erred in denying a mistrial motion, ultimately affirming the conviction.
The court found substantial competent evidence supported the conviction even considering some evidence was circumstantial. The prosecutor's statement was not an improper comment on the defendant's failure to testify and did not warrant a mistrial, as it merely explained that knowledge must be shown through testimony and conduct rather than direct observation.
[1] A court may treat an untimely filed notice of appeal as a petition for writ of habeas corpus to afford delayed appellate review.
[2] All inferences from evidence must be viewed in the light most favorable to the verdict when assessing sufficiency of evidence.
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Join FLexlaw to unlock all legal intelligence“When so considered we find that even though some of the evidence is circumstantial, there is in the record substantial competent evidence to support the verdict, which is all that is required.”
Establishes the standard for appellate review of sufficiency of evidence and indicates circumstantial evidence may support a conviction.
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Join FLexlaw to unlock all legal intelligenceHooks was convicted of two counts of sale of LSD and two counts of possession of LSD. He was indigent and expressed a desire to appeal, and a public d…
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Appellant was convicted of two counts of sale of LSD and two counts of possession of LSD. An indigent, he promptly made known his desire to appeal. The public defender, although timely appointed to represent him for that purpose, filed notice of appeal untimely. Consequently, we have no jurisdiction of the direct appeal. We exercise the prerogative of treating the notice of appeal as a petition for writ of habeas corpus in order to afford delayed appellate review. Baggett v. Wainwright, Fla.1969, 229 So.2d 239 and Collins v. State, Fla.App.1970, 230 So.2d 711.
The first question is whether the evidence was sufficient to sustain the conviction. All inferences reasonably to be drawn from the evidence are to be viewed in a light most favorable to the verdict. Crum v. State, Fla.App.1965, 172 So.2d 24. When so considered we find that even though some of the evidence is circumstantial, there is in the record substantial competent evidence to support the verdict, which is all that is required. Zalla v. State, Fla.1952, 61 So.2d 649.
The second question is whether the court erred in denying appellant’s motion for a mistrial made during the prosecutor’s closing argument. The motion for mistrial was predicated on alleged improper indirect comment on the defendant’s failure to testify in his own behalf. The prosecutor’s statement, interrupted by the objection before the statement was completed, was as follows:
* * * * * *
“MR. BROWN (Prosecutor):
“Now, this business about not knowing it was an hallucinogenic. Mr. Brennan says that the Defendant didn’t know it was hallucinogenic. Well, there is no way for us to pry open Mr. Hooks’ mind and let you look at it on November 30th, 1969—
“MR. BRENNAN: I object to this as being highly improper. I will move for a mistrial.
“THE COURT: 1 am going to ask you ladies and gentlemen of the jury to retire to the jury room, while I hear counsel.”
The prosecutor’s unfinished statement reasonably cannot be construed as a comment upon the defendant’s failure to testify in his own behalf. Although the statement was interrupted, it is clear (and was so explained by the prosecutor to the court out of the presence of the jury) that the reference to “pry open Mr. Hooks’ mind” was merely an explanation that knowledge on the part of the defendant could not be shown by real or demonstrative evidence, i. e., a visual examination of the defendant’s *324mind as it existed at the time of the offense, but rather it necessarily had to be shown through testimony relative to the statements and conduct of the defendant at the time of the transaction. Since the prosecutor’s statement was not a comment on the accused’s failure to testify, there was no reason to grant the defendant’s motion for a mistrial. Roundtree v. State, Fla.App.1969, 229 So.2d 281 and Luke v. State, Fla.App.1967, 204 So.2d 359.
Having afforded to the appellant full appellate review of the alleged trial errors, we find none which would have required reversal on timely direct appeal. We conclude that the appellant-petitioner is not unlawfully detained in custody, and that the petition for writ of habeas corpus should be and is hereby denied.
WALDEN and MAGER, JJ., concur.
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Hooks v. State, 253 So. 2d 424 (Fla. 1971)…ADKINS, Justice. By petition for certiorari, we are asked to review a decision of the District Court of Appeal, Fourth District, (Hooks v. State, 250 So. 2d 322), which allegedly conflicts with prior decisions of other District Courts of Appeal as well as this Court. Petitioner, an indigent, was represented by the public defender during the trial and his appeal to the District Court of Appeal. He seeks cou…
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Childers v. State, 277 So. 2d 594 (Fla. 4th DCA 1973)…(204 So. 2d 515, 519) (Emphasis added.) An examination of the cases cited in my dissenting opinion in Mathis v. State, 267 So. 2d 846 (Fla.App.1972), indicates the type of permissible and impermissible comments. See, in particular, Hooks v. State, 250 So. 2d 322 (Fla.App.1971). It is my view that based upon the facts and circumstances of this case, when taken in context of the record as a whole and in view of the applicable judicial decisions, the prosecutor’s comments were within permissible bounds. It i…
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Sims v. State, 998 So. 2d 494 (Fla. 2008)…e, 303 So. 2d 431 (Fla. 2d DCA 1974) (where the notice of appeal is filed outside the thirty-day jurisdictional time limit provided by law “[the] court does not have jurisdiction and has, therefore, no alternative but to [d]ismiss”); Hooks v. State, 250 So. 2d 322, 323 (Fla. 4th DCA 1971) (holding that the court did not have jurisdiction to review the untimely notice of appeal, despite the fact that the indigent defendant “promptly made known his desire to appeal” and the public defender was “timely appointed…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Baggett v. Louie L. Wainwright, 229 So. 2d 239 (Fla. 1969)
- Crum v. State, 172 So. 2d 24 (Fla. 3d DCA 1965)
- Zalla v. State, 61 So.2d 649 (Fla. 1952)
- Luke v. State, 204 So. 2d 359 (Fla. 4th DCA 1967)
- Roundtree v. State, 229 So. 2d 281 (Fla. 1st DCA 1969)
- Collins v. State, 230 So. 2d 711 (Fla. 4th DCA 1970)