RICHARD MOORE, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Richard Moore was tried for robbery and attempted robbery on charges arising from two separate incidents. The court denied his motion to sever the charges, and he was acquitted of robbery but convicted of attempted robbery. Moore appeals, arguing the joinder of the charges was improper and prejudicial.
The trial court did not err in denying severance because the two offenses were sufficiently connected together under the joinder rule. The court also did not abuse its discretion in denying the recess motion, as the defense had stipulated to the deposition without reserving additional time and failed to show prejudice from the written deposition's unavailability.
[1] Separate offenses may be charged in the same information if they are based on two or more acts or transactions connected together, and the court has jurisdiction to try a…
[2] Offenses are considered "connected together" for joinder purposes when the facts are consistent with the hypothesis that the events are linked.
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Join FLexlaw to unlock all legal intelligence“Two or more offenses which are triable in the same court may be charged in the same Indictment, Information or Affidavit in a separate count for each offense if the offenses charged, whether felonies or misdemeanors or both, are based on the same act or transaction or on two or more acts or transactions connected together”
Establishes the statutory framework for joinder of separate offenses under Florida Criminal Procedure Rule 3.140(d)(4)
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Join FLexlaw to unlock all legal intelligenceOn January 16, 1971, two separate robbery/attempted robbery incidents occurred approximately fifteen minutes apart in the same general vicinity. Both …
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The appellant was tried upon a two count information which charged separate incidents of robbery and attempted robbery. He was tried before a jury and found not guilty of the charge of robbery, but was found guilty of attempted robbery and was sentenced to five years in the state prison. By motion prior to trial and at the time of trial, appellant moved to have the charges severed. The substantial question on this appeal is whether or not the court erred in denying the motions for severance.
It is appellant’s position that since the incidents with which he was charged were separate criminal acts that he was prejudiced by their trial together and that this is particularly true because he was acquitted of the robbery charge. The join-der of separate offenses is permitted by CrPR 3.140(d) (4), 33 F.S.A. which is as follows:
“3.140(d) (4) Joinder of offenses. Two or more offenses which are triable in the same court may be charged in the same *180Indictment, Information or Affidavit in a separate count for each offense if the offenses charged, whether felonies or misdemeanors or both, are based on the same act or transaction or on two or more acts or transactions connected together, provided the court in which the Indictment, Information or Affidavit is filed has jurisdiction to try all of the offenses charged.”
The question for us to determine is whether or not the trial court committed prejudicial error in holding that the offenses here tried together were “acts or transactions connected together.” An examination of the record in this case shows that there is strong evidence linking the two offenses charged in the information. Involved in both incidents were two Negro males riding in a “white” car. Both incidents involved a man with a gun, who proceeded to rob or attempt to rob his victims. Both incidents occurred on the same night, January 16, 1971, in the same general vicinity, approximately fifteen minutes apart.
All the facts are consistent with the hypothesis that the two events are “connected together” within the meaning of CrPR 3.140(d) (4).
Appellant’s remaining point claims an abuse of discretion upon the court’s denial of his motion for a recess made during the progress of the trial. Such matters are ordinarily left to the discretion of the trial court unless a gross abuse of discretion which carries with it a presumption of prejudice or actual prejudice is shown. In the present instance, the reason urged for the recess was to give counsel for the defendant an opportunity to have a deposition typed. Counsel for the defendant had stipulated to the taking of the deposition but had made no reservation as to the need for additional time. In addition, there is no showing in this record that the written deposition would have aided appellant. It is claimed that there was a possibility of impeachment of the witness who later testified at trial but the mere suggestion of this possibility does not constitute prejudice. Richardson v. State, Fla.App.1971, 248 So.2d 530; Pessolano v. State, Fla.App.1964, 161 So.2d 237. See also Cornelius v. State, Fla.1950, 49 So.2d 332.
Affirmed.
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Citator
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MacKlin v. State, 395 So. 2d 1219 (Fla. 3d DCA 1981)…does not justify joinder under Florida Rule of Criminal Procedure 3.150(a).3 Compare Johnson v. State, 222 So. 2d 191 (Fla.1969); Hall v. State, 66 So. 2d 863 (Fla.1953), cert. denied, 346 U.S. 931, 74 S.Ct. 321, 98 L.Ed. 422 (1954); Moore v. State, 259 So. 2d 179 (Fla. 3d DCA 1972). Where joinder is improper under Florida Rule of Criminal Procedure 3.150(a), upon timely motion under Florida Rule of Criminal Procedure 3.152(a)(1), severance is mandatory, see Tyson v. State, 379 So. 2d 1321 (Fla. 1st DCA 1980)…
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Panzavecchia v. State, 311 So. 2d 782 (Fla. 3d DCA 1975)…of discretion, the exercise of which will not be disturbed on appeal unless the party challenging it shall sustain his burden to show it represented an abuse of discretion. Bretti v. State, Fla.App. 1966, 192 So. 2d 6; Moore v. State, Fla.App. 1972, 259 So. 2d 179; Demps v. State, Fla.1973, 272 So. 2d 803. In denying the defendant’s motion for severance of the offenses the trial court necessarily concluded that severance was not necessary (or “appropriate”, as stated in the rule) in order for a fair determina…
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Finlay v. State, 424 So. 2d 967 (Fla. 3d DCA 1983)…bbery. We discern neither a causal relationship nor a series of connected episodes, Green v. State, 408 So. 2d 1086 (Fla. 4th DCA 1982); Rodgers v. State, 325 So. 2d 48 (Fla. 2d DCA 1975), cert. dismissed, 342 So. 2d 1103 (Fla.1977); Moore v. State, 259 So. 2d 179 (Fla. 3d DCA 1972), sufficient to justify joinder. McMullen v. State, 405 So. 2d 479 (Fla. 3d DCA 1981); Fla.R.Crim.P. 3.152 committee note (1972 revision). When improper join-der has occurred, prejudice is conclusively presumed, Macklin v. State, 3…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Cornelius v. State, 49 So. 2d 332 (Fla. 1950)
- Richardson v. State, 248 So. 2d 530 (Fla. 3d DCA 1971)
- Pessolano v. State, 161 So. 2d 237 (Fla. 3d DCA 1964)