JOHN MABERY, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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John Mabery was convicted by jury of burglary with intent to commit grand larceny and grand larceny itself, receiving two concurrent five-year sentences. On appeal, Mabery challenged the sufficiency of evidence and the propriety of the prosecutor's jury argument, but the appellate court found the evidence sufficient and the trial judge did not abuse discretion by refusing to declare a mistrial despite an improper prosecutorial comment.
The court affirmed the conviction, finding the evidence of guilt was not only sufficient but strong, clear, and certain. The court held that while the prosecutor's statement was improper, it did not constitute reversible error because the overall tone of the argument was not improper and the trial judge did not abuse discretion by refusing to declare a mistrial without a proper objection and motion for corrective instructions.
[1] Evidence of guilt can be sufficient, strong, clear, and certain.
[2] A prosecutor's argument that a defendant should bring witnesses to testify on his behalf when his testimony is questionable is improper.
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Join FLexlaw to unlock all legal intelligence“It is not the defendant's duty to prove his innocence.”
Establishes the impropriety of the prosecutor's statement suggesting the defendant should bring witnesses to support his testimony
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Join FLexlaw to unlock all legal intelligenceMabery was accused of entering a dwelling without breaking it with intent to commit grand larceny. The central factual dispute was whether Mabery inte…
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PEARSON, Judge.
A jury found the appellant 1) guilty of entering, without breaking, a dwelling with intent to commit therein a felony, to wit, grand larceny, and 2) guilty of grand larceny. Upon adjudication of guilt, appellant was sentenced to two concurrent five year sentences. On this appeal, six points for reversal are presented. We find no prejudicial error in the record and we, therefore, affirm.
One of appellant’s points argues that the evidence was insufficient. We have reviewed the record in the light of the argument upon this point and find the evidence of appellant’s guilt to be not only sufficient, but also strong, clear and certain. The only real question presented to the jury was the credibility of the defendant’s testimony that he did not intend to steal the television set' involved but rather was moving it to another house for a third party.
Appellant’s main focus on this appeal is directed to the court’s failure to grant a mistrial upon the following argument to the jury of the state attorney: “In fact, when he [the defendant] is going to go get up on the stand and tell you something where it is questionable, he should bring witnesses to testify on his behalf.” The argument of the state attorney was improper. It is not the defendant’s duty to prove his innocence. Davis v. State, Fla. 1956, 90 So. 2d 629. Nevertheless, we do not find reversible error in this case because, other than the unfortunate statement quoted, the tenor of the state attorney’s argument was not improper. The State is permitted to comment upon the essential unbelievability of a defendant’s testimony. See Fitzgerald v. State, Fla.App.1969, 227 So. 2d 45. The State may also show that certain testimony is uncontraverted. Clinton v. State, 56 Fla. 57, 47 So. 389 (1908).
The decision as to whether a particular comment to the jury constitutes reversible error must depend upon the circumstances of a particular case. State v. Jones, Fla.1967, 204 So. 2d 515; Woodside v. State, Fla.App. 1968, 206 So. 2d 426.
We point out once again that the proper procedure to follow where improper remarks are made that are not by their very existence of such an inflammatory nature as to deny a fair trial is to object and to move for corrective instructions. A mistrial is the remedy when the corrective instruction is denied or is inadequate or when the offense is repeated. See Perry v. State, 146 Fla. 187, 200 So. 525 (1941), and Feldman v. State, Fla.App.1967, 194 So. 2d 48. In the case now before us, we hold that no abuse of the trial judge’s discretion has been demonstrated upon his failure to declare a mistrial.
Appellant’s remaining points have been examined and do not present error. Affirmed.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (28 total)
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White v. State, 377 So. 2d 1149 (Fla. 1979)…omment on the uncontradicted or uncontroverted nature of the evidence during argument to the jury. See State v. Jones, supra, at 516-517; Clinton v. State, 56 Fla. 57, 47 So. 389 (1908); Gray v. State, 42 Fla. 174, 28 So. 53 (1900); Mabery v. State, 303 So. 2d 369 (Fla.3d DCA 1974); Woodside v. State, 206 So. 2d 426 (Fla.3d DCA 1968). That portion of the decision of the district court of appeal affirming the conviction is approved, but the portion affirming the sentence is quashed and the cause is remanded t…
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Enoch Lewis, Jr. v. State, 377 So. 2d 640 (Fla. 1979)…ted a proper comment upon the credibility of appellant’s defense, which was within the bounds of the evidence presented in the case. See Spencer v. State, 133 So. 2d 729 (Fla.1961); Reaves v. State, 324 So. 2d 687 (Fla.3d DCA 1976); Mabery v. State, 303 So. 2d 369 (Fla.3d DCA 1974). We fail to find any prejudice to appellant from the prosecutor’s remarks. This is unlike the cases where prejudicial error was found in the prosecutor’s request that the jury consider whether they, or others, would be the defendan…
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White v. State, 348 So. 2d 368 (Fla. 3d DCA 1977)…me, that the statement by the state’s attorney was a fair comment upon the evidence. We, therefore, find no error upon authority of State v. Jones, 204 So. 2d 515 (Fla.1967); Woodside v. State, 206 So. 2d 426 (Fla. 3d DCA 1968); and Mabery v. State, 303 So. 2d 369 (Fla. 3d DCA 1974). The third point presented urges that the sentence for display of a firearm during the commission of a felony is illegal because defendant was also convicted of the felony, i. e., robbery. See Cone v. State, 285 So. 2d 12 (Fla.19…
Previewing 3 of 28 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Hoyt Dan Davis v. State, 90 So. 2d 629 (Fla. 1956)
- State v. Jones, 204 So. 2d 515 (Fla. 1967)
- Perry v. State, 146 Fla. 187 (Fla. 1941)
- Buck Clinton and Edward Clinton v. State, 56 Fla. 57 (Fla. 1908)
- Fitzgerald v. State, 227 So. 2d 45 (Fla. 3d DCA 1969)
- Woodside v. State, 206 So. 2d 426 (Fla. 3d DCA 1968)
- Feldman v. State, 194 So. 2d 48 (Fla. 4th DCA 1967)