HENRY A. SCHULKIN, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Schulkin was convicted by jury of possession and sale of LSD and sentenced to five concurrent years on each count. The Florida appellate court affirmed the convictions but set aside the possession sentence, holding that dual sentencing for possession and sale arising from the same incident violated sentencing principles.
The court held that the speedy trial argument was procedurally barred because the defendant never raised it before the trial judge; the jury instruction regarding the confidential informant was proper; and the sentence on the possession count must be set aside because dual sentencing for possession and sale arising from the same incident violates sentencing principles.
[1] A defendant must bring a speedy trial claim to the attention of the trial judge through an appropriate motion or argument to preserve the issue for appeal.
[2] A trial court commits no error in instructing the jury to disregard a witness's reference to a confidential informant.
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Join FLexlaw to unlock all legal intelligence“the defendant never brought this contention to the attention of the trial judge by appropriate motion or argument”
Establishes that the speedy trial argument was procedurally barred because not raised at trial
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Join FLexlaw to unlock all legal intelligenceSchulkin was charged by information with one count of possession and one count of sale of LSD. Following a jury trial, he was found guilty on both cou…
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PER CURIAM.
Appellant was charged by information with one count of possession and one count of the sale of a hallucinogenic drug known as LSD. Following jury trial, a verdict of guilty was rendered, judgment was entered, and he was sentenced to five years on each count, the sentences to run concurrently. This appeal ensued.
Several points are urged for reversal : First, that the trial court erred in not discharging the defendant in the trial court because he was not brought to trial within the provisions of Rule 3.191 CrPR, 33 F. S.A. [the speedy trial rule]. We find no merit in this position because the defendant never brought this contention to the attention of the trial judge by appropriate motion or argument. State v. Earnest, Fla.App. 1972, 265 So. 2d 397; Morris v. State, Fla.App. 1972, 267 So. 2d 99; Rules 3.191(a)(1), 3.191(d)(1), CrPR.1 Next, it is urged that the trial judge erred in certain instructions relative to a reference to a confidential informant by a witness for the State. It is apparent, from a review of the entire trial transcript, that the trial judge committed no error in the instruction he gave to the jury to disregard any reference to any confidential informant. Stewart v. State, Fla.App.1969, 221 So. 2d 155; Williams v. State, Fla.App. 1971, 243 So. 2d 215.
Lastly, it is urged that it was error to sentence the defendant on both the conviction for possession and sale, when they arose out of the same incident, citing Yost v. State, Fla.App.1971, 243 So. 2d 469. The State concurs -yvith the appellant in this position and, therefore, the sentence of five years on the count of possession be and the same is hereby set aside.
In all other respects, the judgments of conviction be and the same are hereby affirmed. The sentence on the sale is affirmed; the sentence on the possession is set aside.
. “(a)(1). Speedy Trial Without Demand.—
Except as otherwise provided by this Rule, every person charged with a crime, by indictment or information or trial affidavit, shall without demand be brought to trial within 90 days if the crime charged be a misdemeanor, or within 180 days if the crime charged be a felony, capital or noncapital, and if not brought to trial within such time shall upon motion timely filed with the court having jurisdiction and served upon the prosecuting attorney be forever discharged from the crime; # * ff
* * * * *
“(d)(1). Motion for Discharge; Trial; When Timely.—
A motion for discharge shall be timely if filed and served on or after the expiration of the periods of time for trial provided for herein; * * * ”
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Cited By
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Rodriguez v. State, 393 So. 2d 1140 (Fla. 3d DCA 1981)…PER CURIAM. Affirmed. Oliva v. State, 354 So. 2d 1264 (Fla. 3d DCA), cert. denied, 359 So. 2d 1217 (Fla.1978); State ex rel. Canup v. Langston, 341 So. 2d 1069, 1070-71 (Fla. 2d DCA 1977); Schulkin v. State, 287 So. 2d 137 (Fla. 3d DCA 1973); Fla.R.Crim.P. 3.191(a)(2), (f)(ii).…
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State v. Robinson, 336 So. 2d 437 (Fla. 2d DCA 1976)…oncur. . Rule 8.120, R.J.P. . Section 39.01(6), F.S.1973. . Section 39.01(6), F.S.1975. . (Fla.1974), 297 So. 2d 5. . Section 39.02(6)(c), F.S.1971. . See Johnson v. State (Fla.1975), 314 So. 2d 573. . Cf. Schulkin v. State (Fla.App.3d 1973), 287 So. 2d 137; Morris v. State (Fla.App.3d, 1972), 267 So. 2d 99, cert. denied (Fla.1973), 275 So. 2d 251. . Rule 3.191, RCrP.…
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Parsons v. State, 691 So. 2d 552 (Fla. 3d DCA 1997)…(Fla. 3d DCA 1995); McCall v. State, 463 So. 2d 425 (Fla. 3d DCA 1985); Hernandez v. State, 360 So. 2d 39 (Fla. 3d DCA 1978); Oliva v. State, 354 So. 2d 1264 (Fla. 3d DCA 1978); Broge v. State, 288 So. 2d 280 (Fla. 4th DCA 1974); Schulkin v. State, 287 So. 2d 137 (Fla. 3d DCA 1973).…
Authorities Cited
- Yost v. State, 243 So. 2d 469 (Fla. 3d DCA 1971)
- State v. Earnest, 265 So. 2d 397 (Fla. 1st DCA 1972)
- Grover Cleveland Stewart v. State, 221 So. 2d 155 (Fla. 3d DCA 1969)
- Williams v. State, 243 So. 2d 215 (Fla. 3d DCA 1971)
- Yancey Morris v. State, 267 So. 2d 99 (Fla. 3d DCA 1972)