JOHN LOUIS SMITH, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE; LENNIE TIGNER, APPELLANT, V. THE STATE OF FLORIDA, APPELLEE
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The court held that the prosecutor's remarks and actions were not prejudicial and did not deny defendants a fair trial.
Defendants were charged with breaking and entering a dwelling with intent to commit grand larceny, found guilty of intent to commit petit larceny, and…
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PER CURIAM.
The defendants were charged by information with breaking and entering a dwelling with intent to commit grand larceny. They were tried by jury, found guilty of breaking and entering a dwelling with intent to commit petit larceny and were so adjudged; whereupon, Smith was sentenced to a term of five years in the state penitentiary, and Tigner was placer on probation for a period of five years.
On appeal, both defendants contend that the court erred in denying their motions for mistrial and for a new trial because the prosecutor’s actions and remarks in the presence of the jury were so prejudicial as to deny their right to a fair trial. After careful review of the record, we find there to be no reversible error because neither the remarks nor the actions are prejudicial.
Each case must be considered upon its own merits and within the circumstances pertaining when the allegedly prejudicial remark is made. Collins v. State, Fla.1965, 180 So. 2d 340. In the instant case, the remarks are no more than comments upon the failure to provide explanations of incriminating circumstances, and as such, they are not reversible. See State v. Hines, Fla.1967, 195 So. 2d 550; Reilly v. State, Fla.App.1968, 212 So. 2d 796, cert. den. 396 U.S. 1046, 90 S.Ct. 697, 24 L.Ed.2d 690 (1970). Wide latitude is permitted on cross-examination of witnesses, and limitations on the range are within the discretion of the trial court. Matera v. State, Fla.App.1969, 218 So. 2d 180.
Defendant Tigner raised a second point on appeal, relating to sufficiency of the evidence. We have considered the issue, and find it to be without merit.
Therefore, for the reasons stated and upon the authorities cited, we hereby affirm.
Affirmed.
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Davis v. State, 342 So. 2d 987 (Fla. 3d DCA 1977)…796 (Fla.3d DCA 1968), wherein it was held that a defendant could be cross-examined as to his failure to offer an explanation of his presence at the scene of a crime to arresting officers. Reilly and the cases which followed it, see Smith v. State, 305 So. 2d 247 (Fla.3d DCA 1974), and Thomas v. State, 249 So. 2d 510 (Fla.3d DCA 1971), were based on the long-standing rule that a defendant who takes the stand waives his immunity from testimony and thus may be cross-examined as any other witness. See Raffel v.…
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Francis v. State, 343 So. 2d 932 (Fla. 3d DCA 1977)…thing. But, even if it did appear that he had limited cross-examination, it would have been within his discretion and, therefore, no error has been made to appear in this regard. Thomas v. State, 249 So. 2d 510 (Fla.3rd D.C.A. 1971), Smith v. State, 305 So. 2d 247 (Fla.3rd D.C.A. 1974). Lastly, that the trial court erred in denying a motion for mistrial made during the closing argument on the part of the State, allegedly because of improper comment. If the comment was improper, which we do not here find, it w…
Authorities Cited
- Matera v. State, 218 So. 2d 180 (Fla. 3d DCA 1969)
- Sanchez v. Field, 396 U.S. 1046 (U.S. 1970)
- Lawler v. United States, 396 U.S. 1046 (U.S. 1970)
- Collins v. State, 180 So. 2d 340 (Fla. 1965)
- State v. Major Hines, 195 So. 2d 550 (Fla. 1967)
- Reilly v. State, 212 So. 2d 796 (Fla. 3d DCA 1968)