WILLIAM O. WILCOX, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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William O. Wilcox was convicted by jury of three counts of robbery and sentenced to fifteen years imprisonment. On appeal, he challenged the denial of his late discovery motion, the omission of a lesser included offense instruction, and the prosecutor's use of unintroduced photographs, but the Florida appellate court rejected all three arguments and affirmed the conviction.
The court held that: (1) the discovery motion was untimely made at the conclusion of the State's case and lacked predicate, and no Brady violation occurred where nothing in the record indicated any requested items would have been favorable to the defendant; (2) the failure to instruct on simple assault was harmless error because the jury was given instructions on four other lesser included offenses and returned a guilty verdict on robbery; and (3) no mistrial was warranted for the prosecutor's use of photographs because the defendant failed to request a curative instruction and the photographs were not introduced because the defendant himself objected to their admission.
[1] A defendant's motion for discovery of potentially exculpatory evidence made at the conclusion of the State's case, without prior utilization of available discovery proced…
[2] A defendant's attempt to engage in a "fishing expedition" into the prosecution's files during trial, without a proper predicate, is properly denied.
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Join FLexlaw to unlock all legal intelligence“There is no doubt that the prosecution has the affirmative duty to disclose to the defendant any material information tending to negate guilt, but here there is nothing in the record to indicate such a possibility.”
Establishes the Brady v. Maryland rule requiring prosecutorial disclosure of exculpatory evidence while noting its inapplicability where no such evidence appears in the record.
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Join FLexlaw to unlock all legal intelligenceWilcox was found guilty by jury on three counts of robbery and sentenced to fifteen years in prison. At the conclusion of the State's case, he made an…
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PER CURIAM.
The appellant was found guilty by a jury upon three counts of robbery, judgment was entered, and appellant was sentenced to fifteen years in the state penitentiary. On appeal, appellant urges reversal upon three points.
Appellant’s first point urges that he was denied a constitutional right to discover evidence favorable to his plea of not guilty when the court denied his motion made at the conclusion of the State’s case to require the State to produce the following: (1) the court reporter’s transcript of the line-up identification, (2) all police records pertaining to a certain officer’s participation in the investigation and prosecution, (3) complete police reports, (4) complete depositions, and (5) the total work product of the prosecuting attorney as reflected by his trial file. Appellant claims that he was entitled to all of these items upon an oral demand at the conclusion of the State’s case under the holding of the United States Supreme Court in Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). We hold that the motion was untimely made and no predicate had been laid for the production of the various items. See State v. Gillespie, Fla.App. 1969, 227 So. 2d 550.
It should be noted that the appellant had failed to utilize or pursue available discovery procedures before trial to secure any of these items. There is no basis in this record to indicate that any of the items demanded would have been favorable to the defendant. The attempt.to delay the cause during trial by a fishing expedition into the prosecution’s files was properly denied by the trial judge. See Kelsey v. State, Fla.App. 1972, 267 So. 2d 685.
There is no doubt that the prosecution has the affirmative duty to disclose to the defendant any material information tending to negate guilt, but here there is nothing in the record to indicate such a possibility. No error has been demonstrated.
Appellant’s second point claims a failure to instruct the jury properly upon a lesser included offense. The charge upon simple assault should have been given but the failure to include that crime was rendered harmless by the jury returning a verdict of guilty of robbery after being given instructions upon four lesser included offenses. See DeLaine v. State, Fla. App.1970, 230 So. 2d 168 and Blackman v. State, Fla.App.1972, 265 So. 2d 734.
Appellant’s third point urges that he should have been granted a mistrial because during trial the prosecutor utilized certain photographs identified but not introduced into evidence. There was no request for a curative instruction. See Morris v. State, 100 Fla. 850, 130 So. 582 (1930). Further, it appears from the record that the photographs were not introduced into evidence because after identification the defendant objected to their introduction. No error appears.
Affirmed.
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Herman v. State, 396 So. 2d 222 (Fla. 4th DCA 1981)…the defense does not have. In the instant case, the evidence of Murray which the state had prior to trial was not exculpatory nor relevant nor admissible. Murray had no material information which tended to negate Herman’s guilt. See Wilcox v. State, 299 So. 2d 48 (Fla. 3d DCA 1974). Even had there been a specific defense request for the pre-trial statement of Murray, which there was not, a new trial is necessary only when that evidence is material. Antone v. State, 382 So. 2d 1205 (Fla.1980), cert. denied,…
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Cooper v. State, 356 So. 2d 911 (Fla. 3d DCA 1978)…t a statement that he knew to be in existence prior to trial, the trial court will not be held in error for refusing to stop the trial and secure the statement for examination. See Yanetta v. State, 320 So. 2d 28 (Fla. 3d DCA 1975); Wilcox v. State, 299 So. 2d 48 (Fla. 3d DCA 1974); and Kelsey v. State, 267 So. 2d 685 (Fla. 1st DCA 1972). In the present instance, it is clear that the defendant knew of the statement at the time he took Mrs. Cooper’s deposition. We need not determine whether a defendant could…
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Fields v. State, 379 So. 2d 408 (Fla. 3d DCA 1980)…nuance following the denial of his request. In light of the above, we agree with the trial court that the request came too late. Cooper v. State, 356 So. 2d 911 (Fla. 3d DCA 1978); Yanetta v. State, 320 So. 2d 23 (Fla. 3d DCA 1975); Wilcox v. State, 299 So. 2d 48 (Fla. 3d DCA 1974). Interrelated to the defendant’s challenge to the denial of discovery of the victim’s psychiatric records is a further contention that the trial court unduly restricted cross-examination of the minor female victim as to whether s…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Brady v. Maryland, 373 U.S. 83 (U.S. 1963)
- Morris v. State, 100 Fla. 850 (Fla. 1930)
- State v. Gillespie, 227 So. 2d 550 (Fla. 2d DCA 1969)
- Brown's Bldg. Supply, Inc. v. The Commonwealth Corp., 230 So. 2d 168 (Fla. 1st DCA 1970)
- Blackman v. State, 265 So. 2d 734 (Fla. 3d DCA 1972)
- Kelsey v. State, 267 So. 2d 685 (Fla. 1st DCA 1972)