JAMES COMER, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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James Comer appeals his conviction for robbery and 8-year sentence, challenging the trial court's denial of discovery motions regarding the victim's criminal record and alleging improper cross-examination. The Florida appellate court affirmed the conviction, finding no prejudicial error.
No error occurred. The prosecutor's duty to disclose prior convictions of witnesses arises only if such information is within the prosecutor's possession and the defense has exhausted other accessible means to obtain it. Further, defendant suffered no prejudice as the victim's criminal history was actually disclosed during cross-examination. Additionally, the trial court properly denied the mistrial motion because defense counsel failed to request a jury instruction to disregard the remarks before moving for mistrial, and the remarks were not objectionable as prior convictions may be established through witness questioning.
[1] A prosecutor's duty to disclose a witness's criminal record to the defense is contingent upon the information being within the prosecutor's possession and the defense hav…
[2] An appellate court cannot consider an alleged error based on a pretrial motion if the record is devoid of the testimony upon which the motion was based.
Previewing 2 of 5 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 requirement that a prosecuting attorney must disclose to defense counsel any record or prior criminal convictions of the persons whom the prosecuting attorney intends to call as witnesses at the trial arises only if such material and information is within his possession and only upon a showing that defense counsel first has exerted his own efforts and resources and has pursued and exhausted other accessible means and remedies available to him to obtain such information.”
Establishes the standard for when prosecutors must disclose witness criminal records
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Join FLexlaw to unlock all legal intelligenceComer was convicted of robbery by jury and sentenced to 8 years in the state penitentiary. During trial, the judge questioned two police officers abou…
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PER CURIAM.
Defendant-appellant appeals a conviction for robbery and sentence to 8 years in the state penitentiary following a jury trial.
Defendant first claims error on the part of the trial court in the entry of its order denying defense counsel’s pretrial motion for discovery seeking the criminal records of the victim.
The requirement that a prosecuting attorney must disclose to defense counsel any record or prior criminal convictions of the persons whom the prosecuting attorney intends to call as witnesses at the trial arises only if such material and information is within his possession and only upon a showing that defense counsel first has exerted his own efforts and resources and has pursued and exhausted other accessible means and remedies available to him to obtain such information. State v. Coney, Fla.1973, 294 So. 2d 82, 87.
The record presented to this court merely consists of the written motion and the subsequent oral denial thereof. The record being totally devoid of the testimony upon which the subject motion was based, defendant-appellant is precluded from presenting the alleged error for our consideration in that the omitted matter affects the determination of this court. See Costantino v. State, Fla.App.1969, 224 So. 2d 341; Williams v. State, Fla.App. 1969, 222 So. 2d 428; Farrington v. State, Fla.App. 1968, 207 So. 2d 513.
In addition, immediately preceding the trial, the judge questioned two police officers as to their knowledge of the victim having a criminal record. Both responded in the negative. During the trial the victim testified on cross-examination that he had two traffic convictions and that he was placed on probation for a felony, but adjudication of guilt was withheld. No prejudice having resulted to the defendant, the appellant’s argument hereunder must fail. See Buttler v. State, Fla.App. 1970, 238 So. 2d 313.
Appellant secondly urges that the trial court erred in denying defendant’s motion for mistrial predicated upon the alleged improper and prejudicial cross-examination of the defendant.
The record reflects that with respect to the comments to which the objections, overruled by the trial judge, were made, defense counsel moved for mistrial without first making the required request for an instruction to disregard the remarks made. See Ricks v. State, Fla.App. 1971, 242 So. 2d 763. Furthermore, we do not find the remarks objectionable as the existence of a prior conviction may be established by the questioning of a witness. See State v. Young, Fla.App. 1973, 283 So. 2d 58.
Accordingly, the judgment of conviction and sentence are affirmed.
Affirmed.
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Smith v. State, 641 So. 2d 1319 (Fla. 1994)
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Smith v. State, 365 So. 2d 405 (Fla. 3d DCA 1978)…by an instruction to the jury to disregard the testimony or to consider it only in the context of the handwriting comparison. The defendant did not request such a procedure. We think that a mistrial would have been inappropriate. See Comer v. State, 318 So. 2d 419 (Fla. 3d DCA 1975); and Richardson v. State, 248 So. 2d 530 (Fla. 3d DCA 1971). The second point urging error upon the failure to declare a mistrial for claimed prejudicial remarks by the prosecutor in his closing argument is, likewise, insufficien…
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Finney v. State, 502 So. 2d 519 (Fla. 3d DCA 1987)…hich was exculpatory in nature. See Perry v. State, 395 So. 2d 170 (Fla.1981); State v. Counce, 392 So. 2d 1029 (Fla. 4th DCA 1981); Thomas v. State, 374 So. 2d 508 (Fla. 1979); Clements v. State, 340 So. 2d 1182 (Fla. 4th DCA 1976); Comer v. State, 318 So. 2d 419 (Fla. 3d DCA 1975); Pons v. State, 278 So. 2d 336 (Fla. 1st DCA 1973); State v. Gillespie, 227 So. 2d 550 (Fla. 2d DCA 1969). Therefore we find no merit to the appeal from the adjudication upon the jury’s verdict. As to the appeal seeking review o…
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
- State v. Wilmon Coney, 294 So. 2d 82 (Fla. 1973)
- Buttler v. State, 238 So. 2d 313 (Fla. 3d DCA 1970)
- Ricks v. State, 242 So. 2d 763 (Fla. 3d DCA 1971)
- Costantino v. State, 224 So. 2d 341 (Fla. 3d DCA 1969)
- State v. Young, 283 So. 2d 58 (Fla. 1st DCA 1973)
- Farrington v. State, 207 So. 2d 513 (Fla. 3d DCA 1968)
- BAL Harbour Club, Inc. v. Dade Cnty., 222 So. 2d 428 (Fla. 3d DCA 1969)
- Williams v. State, 222 So. 2d 428 (Fla. 4th DCA 1969)