HOWARD LEE ANDREWS AND RICHARD MCCRAY, APPELLANTS,
v.
STATE OF FLORIDA, APPELLEE

Fla. 1st DCA | 1971-09-16
Nos. O-297, O-298
SPECTOR, C. J., and JOHNSON, J., concur.
252 So. 2d 572 Florida District Court of Appeal, First District (1971) Positive Treatment
Cited by 4 cases

AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.

Synopsis

Two defendants appealed their criminal convictions, challenging trial court errors. The court reversed Andrews' conviction because the judgment reflected a conviction on the original charge despite the jury's verdict for a lesser included offense, and affirmed McCray's conviction after finding no merit in his arguments.


Holding

The judgment and sentence against Andrews must be reversed because the judgment must conform to the jury's verdict finding him guilty only of assault with a deadly weapon without intent to kill. The objection to the rebuttal witness question cannot be reconsidered on appeal because appellants failed to raise the predicate issue at trial. McCray's conviction is affirmed because the sufficiency of evidence question involved credibility determinations properly resolved by the jury.


Headnotes

[1] A judgment of conviction and sentence must be set aside when it does not conform to the jury's verdict, even if the jury found the defendant guilty of a lesser included o…

[2] A party may not raise for the first time on appeal an objection to questions propounded to witnesses on grounds not urged at trial.

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Key Quotes

“the judgment rendered against Andrews- adjudged him guilty as charged in the information with the offense of assault with intent to commit murder. It was based upon such conviction that sentence was imposed upon him. Both appellant and appellee concede that the error thus committed requires that the judgment and sentence imposed by the court be set aside.”

Establishes the fundamental error in Andrews' judgment that did not conform to the jury verdict and required reversal.

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Facts & Procedural History

Andrews was charged with assault with intent to commit murder but the jury found him guilty of the lesser included offense of assault with a deadly we…

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Opinion of the Court
WIGGINTON, Judge.

WIGGINTON, Judge.

Appellants seek review of the judgments of conviction and sentence rendered against them based upon a jury verdict finding them guilty of offenses against the criminal laws of this state. Appellants contend that the trial court committed error during the course of their respective trials, because of which they are entitled to a new trial.

Appellant Andrews was charged in an information with the offense of assault with intent to commit murder. The jury rendered its verdict finding him guilty of the lesser included offense of assault with a deadly weapon without intent to kill. For some reason not disclosed by the record, but perhaps through inadvertence or oversight, the judgment rendered against Andrews- adjudged him guilty as charged in *573the information with the offense of assault with intent to commit murder. It was based upon such conviction that sentence was imposed upon him. Both appellant and appellee concede that the error thus committed requires that the judgment and sentence imposed by the court be set aside. For the foregoing reasons, the judgment of conviction and sentence with respect to appellant Andrews is reversed and the cause remanded with directions that a proper judgment and sentence be imposed in accordance with the jury’s verdict.

Both appellants contend that the trial court erred in overruling their objection to a question propounded by appellee to a rebuttal witness which was elicited for the purpose of impeaching the testimony of a defense witness who testified on behalf of appellants. They urge that no predicate for the question to which they objected was properly laid by the State as required by F.S. Section 90.10, F.S.A., relating to impeachment of witnesses by adverse party. Our examination of the record disclosed that no objection to the question referred to was made by appellants during the trial on the grounds asserted on this appeal. The record affirmatively establishes that the objection made by appellants to the critical question propounded to the State’s rebuttal witness was on the ground that it constituted hearsay evidence and was therefore inadmissible. It was this objection which the trial court overruled and its action in this regard is not assigned as error on appeal. It is a settled principle of law prevailing in this state that a party is not permitted to raise for the first time in an appellate court an objection to questions propounded to witnesses in the trial court upon grounds which were not urged as an objection to the questions at the time of trial.1 Appellants having objected to the question propounded to the State’s rebuttal witness on the sole ground that it constituted inadmissible hearsay evidence may not now abandon that ground for their objection and assert for the first time on this appeal the new and different ground that no predicate for the question was properly laid as required by law. The error, if any, being neither jurisdictional nor fundamental, is not one which may now be considered under the circumstances of this case.

We have considered the remaining point urged by appellant McCray regarding the sufficiency of the evidence to support the verdict and judgment against him. From our review of the record we are convinced that this question involved an issue created by conflicting testimony, evidence, and reasonable inferences to be drawn therefrom which could properly be resolved only by the jury. We find this point on appeal to be without merit.

The judgment and sentence rendered against appellant Andrews is reversed and the cause remanded for the rendition of an appropriate judgment and sentence in accordance with the jury’s verdict. The judgment against appellant McCray is affirmed.

SPECTOR, C. J., and JOHNSON, J., concur.


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Citator

Cited By

  • Andrews v. State, 261 So. 2d 497 (Fla. 1972)
    …McCAIN, Justice. On this petition for writ of certiorari, petitioners seek review of a decision of the District Court of Appeal, First District, opinion reported at 252 So. 2d 572, which is alleged to conflict with Morasso v. State, 74 Fla. 269, 76 So. 777 (1917). The decisive issue to be determined is whether a party who finds a question objectionable because of the failure of the opposing side to lay a proper predicate may…
  • Andrews v. State, 263 So. 2d 846 (Fla. 1st DCA 1972)
    …ore such proof can be given, the circumstances of the supposed statement, sufficient to designate the particular occasion, must be mentioned to witness, and he must be asked whether or not he made such statements.” . Andrews v. State (Fla.App.1971) 252 So. 2d 572, 573. . Andrews v. State (Fla.1972) 261 So. 2d 497.…

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