TATIANA DIAZ CALVO, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Tatiana Calvo was convicted by jury of manslaughter and assault with intent to commit first-degree murder after she drove a car that killed her husband and injured another woman. She appealed challenging grand jury procedures, jury instructions on inconsistent charges, and claiming her intent to kill one victim transferred to the death of another, but the appellate court affirmed her conviction.
The appellate court found no reversible error in the grand jury procedures or constitutional challenges. The court rejected appellant's argument that her intent to kill Machado transferred to her husband's death, holding that if any error existed in the charging or instructions, it benefitted the appellant and was therefore harmless.
[1] A defendant is not entitled to access to the master grand jury list, to issue subpoenas to depose persons on the list, or to an evidentiary hearing on a grand jury challe…
[2] A court does not err by permitting circuit court judges, acting as grand jury commissioners, to rule on the constitutionality of the selection of grand jury members.
Previewing 2 of 6 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“In effect, appellant is arguing that the court should have instructed the jury that she could be found guilty of first degree, not second degree, murder of her husband.”
Court characterizes appellant's intent transfer argument as seeking a more serious charge instruction
Previewing 1 of 2 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceAppellant was driving an automobile that struck Mrs. Yara Machado a glancing blow while pinning her husband, Raul Calvo, against a building wall, resu…
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PER CURIAM.
Appellant was found guilty by a jury of the crimes of manslaughter' and assault with intent to commit first degree murder. She was sentenced to serve concurrent terms of imprisonment for ten (10) years.
As her first two points on appeal, appellant attacks (a) the failure of the trial court to grant her access to the master grand jury list; to issue subpoenas in order to depose persons on the list; and to grant an evidentiary hearing on her grand jury challenge; and (b) the constitutionality of Florida Statutes, Chapter 57-550 and 70-1000, Laws of Florida, in that they permit circuit court judges, acting as grand jury commissioners, to rule on the constitutionality of the selection of the members of the grand jury.
Our scrutiny of the record and the briefs fails to demonstrate reversible error under these two points. See, Seay v. State, Fla. 1974, 286 So. 2d 532; Rojas v. State, Fla. 1974, 288 So. 2d 234; Dykman v. State, Fla. 1973, 294 So. 2d 633. Next, appellant asserts that the court erred by failing to grant her motion for a judgment of acquittal upon one (or the other) of the two charges against-her. Closely connected to this point is the appellant’s fourth point that the court charged the jury on two crimes which were inconsistent and incompatible; and, therefore, the charges were confusing.
Appellant was charged with second-degree murder of her husband, Raul Calvo, and assault with intent to commit first degree murder of one, Mrs. Yara Machado.
The evidence at trial indicated that it was the appellant’s actual intent to kill Mrs. Machado, not her husband. However, the automobile in which she was driving only struck Mrs. Machado a glancing blow, while pinning the victim, Raul Calvo, against the wall of a building, resulting in his death.
Therefore, appellant argues that appellant’s intent to kill Mrs. Machado is transferred to her husband, and it would be legally impossible for her to be guilty of second degree murder. Compare, Lee v. State, Fla.1962, 141 So. 2d 257; Pinder v. State, 1891, 27 Fla. 370, 8 So. 837; Coston v. State, 1939, 139 Fla. 250, 190 So. 520.
We find this reasoning lacking in substantial merit. In effect, appellant is arguing that the court should have instructed the jury that she could be found guilty of first degree, not second degree, murder of her husband.
Further, appellant contends that she was entitled to be acquitted because the state undercharged her for second degree murder, instead of first degree murder. It is our conclusion that if any error was committed, the error benefitted the appellant, and, therefore, we hold it was harmless. Fla.Stat. § 924.33, F.S.A. For the reasons stated, the judgment and sentence appealed are affirmed.
Affirmed.
Cases With Similar Vibessemantic neighbors from the corpus
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Cited By
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Valle v. State, 474 So. 2d 796 (Fla. 1985)…So. 2d 633 (Fla.1973); Rojas v. State, 288 So. 2d 234 (Fla.1973), cert. denied, 419 U.S. 851, 95 S.Ct. 93, 42 L.Ed.2d 82 (1974); Seay v. State, 286 So. 2d 532 (Fla.1973), cert. denied, 419 U.S. 847, 95 S.Ct. 84, 42 L.Ed.2d 77 (1974); Calvo v. State, 313 So. 2d 39 (Fla. 3d DCA 1975), cert. denied, 330 So. 2d 15 (Fla.), cert. denied, 429 U.S. 918, 97 S.Ct. 309, 50 L.Ed.2d 283 (1976). However, this method is constitutional only if there is a random selection of jurors by the circuit judges. [*800] As we stated…
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Watson v. State, 322 So. 2d 648 (Fla. 3d DCA 1975)…the authority of Estevez v. State, Fla.1975, 313 So. 2d 692. See also Hall v. State, Fla.App.1972, 261 So. 2d 521; Pettigrew v. State, Fla.App.1974, 295 So. 2d 672; State v. Kirkland, Fla.1975, 322 So. 2d 480. Compare Calvo v. State, Fla.App. 1975, 313 So. 2d 39.…
Authorities Cited
- Pinder v. State, 27 Fla. 370 (Fla. 1891)
- Coston v. State, 139 Fla. 250 (Fla. 1939)
- Seay v. State, 286 So. 2d 532 (Fla. 1973)
- Eugenio Herberto Rojas v. State, 288 So. 2d 234 (Fla. 1973)
- LEE v. State, 141 So. 2d 257 (Fla. 1962)
- Dykman v. State, 294 So. 2d 633 (Fla. 1973)