MORTELLARO
v.
STATE
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Appellant Mortellaro was convicted of armed robbery and appealed on multiple grounds, including the omission of 'Jr.' from his name in the indictment and improper cross-examination regarding a 'papa wheel' gambling device. The Florida Supreme Court affirmed the conviction, finding no reversible error.
The court held no reversible error occurred. The omission of 'Jr.' from the defendant's name did not constitute reversible error where the indictment contained the surname and one or more given names identifying the defendant charged, the defendant did not request the addition during trial, and there was no assignment of error based on the omission. The cross-examination regarding the papa wheel was proper because the defendant himself introduced the topic during direct examination.
“We are not authorized to consider an error unless it is the basis of an assignment of error.”
Establishes the procedural requirement that errors must be properly assigned to be considered on appeal; applies to the 'Jr.' omission argument.
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Join FLexlaw to unlock all legal intelligenceAppellant Paul Mortellaro, Jr. testified in his own behalf at trial. During direct examination, he stated he was building a table for a 'papa wheel,' …
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MATHEWS, Justice.
In this case the appellant was convicted of armed robbery. There are numerous .assignments of error. Each of them and the record, bearing thereon, as well ás the authorities cited, have been examined with great care.
It appears that when the appellant testified in his own behalf he gave his name as Paul Mortellaro, Jr. The information, verdict, judgment'and all proceedings refer to him as Paul Mortellaro. He did not request the addition of’ Jr. In the brief filed by the appellant it is now claimed that the -Court committed reversible error because it did not cause to be inserted in the indictment, information and record .the letters “Jr.”, based upon F.S. § 906.08 (5), F.S.A. There was no complaint during the trial and there is no assignment of error based upon’this-omission. We are-not authorized to consider an error unless it is the basis of an assignment of error. It appears that the information and all other documents in the record ’ contained the surname of the appellant and “one or more given names” as provided by F.S. § 906.08, F.S.A. The record discloses that the individual charged with the commission of the crime was the individual who pleaded not guilty and who testified in his own behalf. Even though he may be generally known as Paul Mortellaro, Jr., and his father is known as Paul Mortellaro, no reversible error is shown as to the omission of “Jr.”, and the failure to make a correction by the trial Judge does not constitute reversible error as to the appellant. We are not authorized to adjudicate the rights of the appellant’s father who is not a party to this proceeding.
Appellant assigns as error the cross-examination of the appellant with reference to a “papa wheel”. The record shows that appellant did object to the cross-examination on the ground that it was not in cross of anything brought out on direct examination.
The appellant voluntarily took the witness stand and on direct examination the following questions were asked and answers given
“Q. And tell the jury what you were doing.? A. I 'was building a wall and á table.
“Q. What kind of a table? A. It was supposed to be a papa wheel table.
,.,“Q. And a papa wheel is what? A. It’s • a big wheel that’s got numbers on it and. spin it and it’s got a needle and wherever it stops, whatever number comes out, that’s the winner. “Q. Papa wheel is a gambling device? A. Yes, sir. “Q. And you were building a table to put the wheel on? A. That’s right.
. “Q. Did you ever operate a papa wheel ? A. Have I operated a papa wheel before?
“Q. Did you operate the papa wheel? A. No, sir. “Q. That day, was any papa wheel operating, that day? A. No, sir. “Q. Was it? A. No. “Q. You were just building it? A. Just building it.”
The first time we find “papa wheel” in the record is from the above testimony of the appellant, which was given on direct examination, and such testimony fully justified every question propounded by the State on cross-examination with reference to the “papa wheel”.
We have carefully examined the entire record in this case and it does not appear that any error was committed which injuriously affects the substantial rights of the appellant. F.S. § 924.33, F.S.A. Affirmed.
ROBERTS, C. J., and TERRELL and SEBRING, JJ., concur.
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Cress Joseph Walker v. State, 222 So. 2d 61 (Fla. 3d DCA 1969)…ssignments of error filed herein do not reflect an assignment which would support this point on appeal. We are not authorized to consider error, except fundamental, unless it is the basis of an assignment of error. See Mortellaro v. State, Fla.1954, 72 So. 2d 815; Belger v. State, Fla.App.1965, 171 So. 2d 574. Defendant claims that he has discovered new evidence subsequent to the filing of his brief and that this constitutes sufficient grounds for reversal and for a new trial. There is no indication in the…
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Knight v. State, 97 So. 2d 115 (Fla. 1957)…the contents of assignments of error. See Johnston v. State, 29 Fla. 558, 10 So. 686; Berger v. E. Berger & Co., 76 Fla. 503, 80 So. 296; Kloss v. State, 95 Fla. 433, 116 So. 39; Dewey v. State, 135 Fla. 443, 186 So. 224; Mortellaro v. State, Fla., 72 So. 2d 815; Redditt v. State, Fla., 84 So. 2d 317. It is only because the fundamental rights of the individual are so seriously affected by this phase of the proceedings below that we are constrained to ignore appellant’s failure to comply strictly with the ru…
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Stephan v. State, 251 So. 2d 30 (Fla. 4th DCA 1971)…ly those alleged errors properly presented to it and will not determine questions not presented and considered by the trial court and not embraced in the assignments of error. Silver v. State, Fla.1966, 188 So. 2d 300; Mortellaro v. State, Fla.1954, 72 So. 2d 815; Dukes v. State, 1941, 148 Fla. 109, 3 So. 2d 754; Ryan v. State, 1910, 60 Fla. 25, 53 So. 448; 2 Fla.Jur., Appeals, § 287; Rule 6.16, F. A.R., 32 F.S.A. A recognized exception to this foregoing principle will be made where the alleged error constit…
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