JAMES ELMORE STAPLES, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that the appellant's claim regarding the order of closing arguments did not rise to the level of constitutional magnitude required for post-conviction relief and that the failure to object below waived the issue.
Appellant sought post-conviction relief, arguing the state improperly made the concluding argument at his trial when he did not testify. No objection …
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GRIMES, Judge.
Appellant contends that the court below erred in denying his application for post-conviction relief without the granting of a hearing. His main argument concerns the fact that the state made the concluding argument at his 1968 trial even though he did not testify in his own behalf.
No objection was made to the order of closing argument. The failure to permit a defendant to have the concluding argument when he does not testify constitutes reversible error, but only when the point is preserved on appeal. Hall v. State, 1935, 119 Fla. 38, 160 So. 511; see Willoughby v. State, Fla.App.3rd, 1967, 203 So. 2d 10. Even perceiving appellant’s contention to be the deprivation of effective assistance of counsel rather than the right to close, he does not make a claim of constitutional magnitude which may be reached under Rule 3.850, Cr.P.R.1 Counsel’s failure to urge appellant’s right to concluding argument did not deprive him of a fair trial. In many jurisdictions, criminal defendants never have this right. The fact that appellant was not accorded the opportunity to argue last was not fundamental error. Hence, there is no need for a hearing below.
The order is affirmed.
MANN, C. J., and BOARDMAN, J., concur. . The fact that appellant was represented by private counsel offers an additional basis upon which we could reject his claim. Cappetta v. Wainwright, Fla.1967, 203 So. 2d 609; Dickenson v. State, Fla.App.3rd, 1972, 261 So. 2d 561; Frizzell v. State, Fla.App.2d, 1968, 213 So. 2d 293; Todd v. State, Fla.App.2d, 1965, 176 So. 2d 344; Everett v. State, Fla.App.3rd, 1964, 161 So. 2d 714. But see West v. Louisiana, 478 F. 2d 1026 (5th Cir.1973).
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Vagner v. Louie L. Wainwright, 398 So. 2d 448 (Fla. 1981)…r v. State, 366 So. 2d 1271 (Fla. 4th DCA), cert. denied, 378 So. 2d 344 (Fla.1979); O’Quinn v. State, 364 So. 2d 775 (Fla. 1st DCA 1978), cert. denied, 373 So. 2d 460 (Fla.1979); Crespo v. State, 339 So. 2d 697 (Fla. 3d DCA 1976); Staples v. State, 298 So. 2d 545 (Fla. 2d DCA 1974); State v. Pinto, 273 So. 2d 408 (Fla. 3d DCA), cert. dismissed, 283 So. 2d 367 (Fla.1973); Humphries v. State, 232 So. 2d 23 (Fla. 1st DCA), cert. denied, 237 So. 2d 752 (Fla.1970); Belsky v. State, 231 So. 2d 256 (Fla. 3d DCA 197…
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Terwilliger v. State, 535 So. 2d 346 (Fla. 1st DCA 1988)…ubstantial procedural right, the denial of which constitutes 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.…
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Warfield Raymond Wike, Jr. v. State, 648 So. 2d 683 (Fla. 1994)…durally barred. Quince v. State, 414 So. 2d 185 (Fla.), cert. denied, 459 U.S. 895, 103 S.Ct. 192, 74 L.Ed.2d 155 (1982); Gibson v. State, 351 So. 2d 948 (Fla.1977), cert. denied, 435 U.S. 1004, 98 S.Ct. 1660, 56 L.Ed.2d 93 (1978); Staples v. State, 298 So. 2d 545 (Fla. 2d DCA 1974). In this case, however, we find that the issue was properly preserved.3 Wike requested that he be al-. lowed to present the concluding argument on more than one occasion, and the State erroneously advised the trial judge that no r…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Limmie West, III v. State OF La., 478 F.2d 1026 (5th Cir. 1973)
- Cappetta v. Louie L. Wainwright, 203 So. 2d 609 (Fla. 1967)
- Hall v. State, 119 Fla. 38 (Fla. 1935)
- Everett v. State, 161 So. 2d 714 (Fla. 3d DCA 1964)
- Alton Glenn Dickenson v. State, 261 So. 2d 561 (Fla. 3d DCA 1972)
- Willoughby v. State, 203 So. 2d 10 (Fla. 3d DCA 1967)
- Baskin v. Klemm, 118 Fla. 662 (Fla. 1935)
- Frizzell v. State, 213 So. 2d 293 (Fla. 2d DCA 1968)
- Ward Baking Co. v. Scott, 176 So. 2d 344 (Fla. 1st DCA 1965)
- Ellis A. Todd v. State, 176 So. 2d 344 (Fla. 2d DCA 1965)