RICKY RAYSOR AND RAYMOND RAYSOR, APPELLANTS,
v.
STATE OF FLORIDA, APPELLEE; ROOSEVELT LESTER, APPELLANT, V. STATE OF FLORIDA, APPELLEE
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The denial of a defendant's statutory right to closing argument, when they offer no testimony except their own, constitutes reversible error, even if the evidence of guilt is strong.
[1] Denial of a defendant's statutory right to make the concluding argument to the jury, when the defendant offers no testimony except his own, constitutes reversible error.
[2] The harmless error rule cannot be applied to cure the denial of a defendant's statutory right to the concluding jury argument.
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Join FLexlaw to unlock all legal intelligenceTwo defendants had their convictions affirmed, while a third, Roosevelt Lester, appealed his conviction. Lester was denied his right to make the concl…
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This was a not unusual criminal case based upon charges of robbery. Those convicted upon trial by jury appeal the resulting judgments. The cases were consolidated for purposes of appeal. We affirm the convictions of defendants-appellants-, Ricky Raysor and Raymond Raysor, because they failed to demonstrate any reversible errors. We reverse the conviction of Roosevelt Lester because the court violated Rule 3.250, Florida Rules of Criminal Procedure1, 33 F.S.A.
Although Lester qualified under the Rule for an entitlement for the concluding argument before the jury, and requested same, the request was denied without explanation and the state was permitted the opening and closing jury arguments.
The state does not deny the error and simply rests upon the premise that same was harmless because Lester has failed to demonstrate prejudice accruing to him by reason of the denial.
We believe the state’s position to be unsound and particularly in light of the pronouncements of the Supreme Court of Florida in Birge v. State, Fla. 1957, 92 So.2d 819, at pages 821 and 822:
* * * * * *
“We have consistently held that the right guaranteed to an accused by the cited statute is a vested procedural right the denial of which constitutes reversible error. * * * [WJhile a trial judge may exercise some discretion in arranging the order of addresses to the jury, he cannot deprive an accused of the right to the closing argument when he has offered no testimony except his own.”
“We have carefully examined the evidence submitted to the jury. We are frank to state that in our judgment it was more than adequate to sustain the. *869jury’s verdict. However, in view of the nature of the error we are not here permitted to apply the so-called harmless error rule authorized in many instances by Sections 54.23 and 924.33, Florida Statutes, F.S.A. The importance of the procedural right discussed above has been underscored by the fact that the privilege has been included in an act of the Legislature by which we are bound. It is not within our judicial province to disregard completely this legislative enactment which undoubtedly was passed to provide for those accused of crime an orderly judicial safeguard for the determination of their rights. As an appellate court we cannot speculate on the effect that the closing argument might have had on the jury. We are here confronted with the necessity of recognizing and preserving an important right guaranteed to the accused by our statute. It is not our privilege to disregard it even though we as individuals might feel that this appellant is as guilty as sin itself. (Emphasis supplied.)
“We are therefore compelled to the conclusion that the denial of this right to the appellant was a substantial prejudicial error which requires a new trial.”
See also Davis v. State, Fla.App. 1971, 256 So.2d 22; Cagnina v. State, Fla.App.1965, 175 So.2d 577, and Wyatt v. State, Fla. App.1972, 270 So.2d 47. In further extension, we are at a loss as a practical matter to know just how any criminal defendant could in fact make a demonstration of error because of the refusal of the trial court to follow the dictates of the Rule. It is inherent in the procedure, as all acquainted with trial tactics know, that the right to address the jury finally is a fundamental advantage which simply speaks for itself.
We do not know the rationale behind the denial of this vested procedural right to Lester. By way of volunteered comment, the fact that the defendants were represented by different attorneys who happened to be members of the same firm is of no moment as concerns the proper administration of Rule 3.250, supra. See Lopez v. State, Fla.1953, 66 So.2d 807, and Faulk v. State, Fla.1958, 104 So.2d 519. Furthermore, the fact that the state chooses to place multiple defendants on trial collectively can not serve as a diminution or abolishment of Rule 3.250, supra, because of any awkwardness in arranging the order of closing argument, or otherwise. See Faulk v. State, supra. While not exclusive, one method whereby Lester could have been afforded his right is as follows:
a. Mr. Kay (for Lester) opens.
b. State argues against all defendants.
c. Mr. Stahl argues on behalf of the defendants, Ricky Raysor and Raymond Raysor.
d. The State argues as concerns all defendants.
e. Mr. Kay (for Lester) presents the concluding argument.
The judgment and sentences of Ricky Raysor and Raymond Raysor are hereby affirmed. The judgment and sentence of the defendant, Roosevelt Lester, is hereby reversed and the case remanded for a new trial as to him.
Reversed in part; affirmed in part.
REED, C. J., and CROSS, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
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Terwilliger v. State, 535 So. 2d 346 (Fla. 1st DCA 1988)…stitutes reversible error, notwithstanding that the state’s evidence may be more than adequate to support a verdict of guilty. See, e.g., Birge v. State, 92 So. 2d 819 (Fla.1957); Staples v. State, 298 So. 2d 545 (Fla. 2d DCA 1974); Raysor v. State, 272 So. 2d 867 (Fla. 4th DCA 1973). In the instant case, appellant neither testified nor offered any evidence in his behalf. He therefore was entitled to the last argument before the jury. Wright v. State, 87 So. 2d 104 (Fla.1956) (“concluding” means the last argu…
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Warfield Raymond Wike, Jr. v. State, 648 So. 2d 683 (Fla. 1994)…such, the law is clear that the erroneous denial of the right provided by rule 3.250 cannot be deemed harmless error. Morales; Hart v. State, 526 So. 2d 124 (Fla. 5th DCA 1988); Gari. As the Fourth District Court of Appeal stated in Raysor v. State, 272 So. 2d 867, 869 (Fla. 4th DCA 1973): [W]e are at a loss as a practical matter to know just how any criminal defendant [*687] could in fact make a demonstration of error because of the refusal of the trial court to follow the dictates of the Rule. It is inhere…
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Elias v. State, 301 So. 2d 111 (Fla. 2d DCA 1974)…d no testimony in his own behalf, he was prejudiced because he was deprived of the opportunity of making the first and last [*115] argument to the jury. Smith v. State, 1944, 155 Fla. 148, 19 So. 2d 698. He cites Raysor v. State, Fla.App. 4th, 1973, 272 So. 2d 867, for the proposition that a proper order of argument would have been: 1. Rodriguez opens. 2. State argues against both defendants. 3. Elias argues. 4. State argues against both defendants. 5. Rodriguez closes. However, Raysor does not intimate…
Previewing 3 of 10 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Birge v. State, 92 So. 2d 819 (Fla. 1957)
- Lopez v. State, 66 So. 2d 807 (Fla. 1953)
- Jewell Faulk v. State, 104 So. 2d 519 (Fla. 1958)
- Polacek v. Rests., Inc., 175 So. 2d 577 (Fla. 3d DCA 1965)
- Stroup v. State, 270 So. 2d 47 (Fla. 2d DCA 1972)
- Eggers v. Narron, 256 So. 2d 22 (Fla. 4th DCA 1971)
- Davis v. State, 256 So. 2d 22 (Fla. 2d DCA 1971)