JONAH MACK, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Jonah Mack appealed his jury conviction for aggravated assault and five-year sentence, raising three issues: denial of motion to show his face to the jury, refusal to instruct on a lesser included offense, and assessment of court costs despite adjudication of insolvency. The court affirmed the conviction but reversed the cost assessment.
The court held that: (1) denying the motion to show his face was not error where the defendant testified and the jury could view him throughout the trial; (2) improper exhibition of a weapon is not a lesser included offense of aggravated assault absent a showing it is comprehended within the major offense; and (3) assessing costs against an adjudicated insolvent defendant violates Florida law, which requires the county to pay such costs.
[1] A court does not err in denying a defendant's motion to proffer his face for examination by the jury when the defendant has testified and been visible to the jury through…
[2] A court does not abuse its discretion in denying a requested jury instruction on a lesser included offense if the defendant fails to establish that the lesser offense is…
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“the court erred in denying the defendant's motion to proffer his face to the jury for examination in order to contradict testimony of the state's witnesses that the defendant had'been injured as the result of a speargun attack by the alleged victim, is without merit, especially where the defendant took the stand and the jury was able to view him at all times.”
Establishes that where a defendant testifies and is visible to the jury throughout trial, additional motions to present his appearance are unnecessary.
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Join FLexlaw to unlock all legal intelligenceMack was charged with aggravated assault, tried by jury, and convicted. The state's witnesses testified that Mack had been injured as a result of a sp…
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PER CURIAM.
The appellant, defendant in the trial court, was charged by information with aggravated assault. He was tried by jury, convicted and sentenced to five years in the state penitentiary. Three points are raised on appeal. The first point, that the court erred in denying the defendant’s motion to proffer his face to the jury for examination in order to contradict testimony of the state’s witnesses that the defendant had'been injured as the result of a speargun attack by the alleged victim, is without merit, especially where the defendant took the stand and the jury was able to view him at all times.
The second point raised on appeal is that the court erred in failing to give the jury instruction requested by the defendant on the lesser included offense of improper exhibition of a weapon or firearm where, as the appellant contends, the evidence meets all of the requirements for that offense. The appellant fails to set forth any authority for the proposition that improper exhibition of a weapon or firearm is a lesser included offense of aggravated assault. Absent a showing that “the lesser included offense is ‘comprehended’ within the major offense to the extent that it is within the general scope of the charge made . . . ”, we find no abuse of discretion and no reversible error in the court’s denial of same. State v. Anderson, Fla.1973, 270 So. 2d 353, 355. Accord Brown v. State, Fla.1968, 206 So. 2d 377 and DeLaine v. State, Fla.1972, 262 So. 2d 655.
The third point raised on appeal is that the court erred in assessing $2 court costs against the defendant because he had been adjudicated insolvent. It is stated in § 939.15, Fla.Stat., that:
“Costs paid by county in cases of insolvency. — When the defendant in any criminal case pending in any circuit or county court, a district court of appeal or the supreme court of this state has been adjudged insolvent by the circuit judge or the judge of the county court, upon affidavit and proof as required by § 924.17 in cases of appeal, or when the defendant is discharged or the judgment reversed, the costs allowed by law shall be paid by the county in which the crime was committed, upon presentation to the county commissioners of a certified copy of the judgment of the court against such county for such costs.”
It was, therefore, error for the court to assess costs against the defendant.
For the reasons stated, the judgment and conviction appealed are affirmed and the order assessing court costs against the defendant is reversed, and the defendant is released from his obligation to pay said costs.
Affirmed in part, reversed in part.
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Citator
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COX v. State, 334 So. 2d 568 (Fla. 1976)…by law shall be paid by the county in which the crime was committed, upon presentation to the county commissioners of a certified copy of the judgment of the court against such county for such costs.” This section was interpreted in Mack v. State, 305 So. 2d 264 (Fla.App.3rd, 4974), to make it error to assess court costs against a defendant who had been adjudicated insolvent. We agree with the holding in Mack. It was therefore error for the Circuit Court to affirm the imposition of court costs and the Distr…
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Elio Frank Fernandez, Jr. v. State, 570 So. 2d 1008 (Fla. 2d DCA 1990)…firearm may be a lesser-included offense of aggravated assault); Craft v. State, 441 So. 2d 704 (Fla. 2d DCA 1983) (improper exhibition of a dangerous weapon is a lesser-included offense of aggravated assault with a firearm). But cf. Mack v. State, 305 So. 2d 264 (Fla. 3d DCA 1974) (improper exhibition of a weapon is not a lesser-included offense of aggravated assault). Having concluded that the trial court erred in denying Mr. Fernandez’s requested instruction, we next consider whether the trial court’s er…
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Arnold v. State, 356 So. 2d 862 (Fla. 1st DCA 1978)…e county. That statute has been construed to prohibit the assessment of court costs against a defendant who has been adjudged insolvent. (Smith v. State, 352 So. 2d 1276 (Fla.App. 1st 1977); Cox v. State, 334 So. 2d 568 (Fla.1976) and Mack v. State, 305 So. 2d 264 (Fla. 3rd DCA 1976)) Accordingly, the imposition of costs as a part of the sentence was error and must be reversed. However, the trial court did not err upon ordering the payment of court costs as a condition of probation. The granting of probation…
Previewing 3 of 10 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Brown v. State, 206 So. 2d 377 (Fla. 1968)
- DeLAINE v. State, 262 So. 2d 655 (Fla. 1972)
- Bruno v. State, 270 So. 2d 353 (Fla. 1972)
- State v. Anderson, 270 So. 2d 353 (Fla. 1972)