CHESTER SMITH
v.
STATE OF FLORIDA
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Chester Smith appeals his manslaughter conviction, arguing that the trial court violated his statutory right to opening argument by only allowing him closing argument. The Florida Supreme Court holds that a defendant entitled to closing argument under Fla. Stat. § 918.09 is also entitled to opening argument, reversing the conviction on this procedural ground.
Yes. A defendant granted concluding (closing) argument by statute is also entitled to opening argument. The statute effectively reverses the normal order of argument from the State to the defendant when the defendant is entitled to closing argument, thus logically requiring the defendant to make opening argument first.
“a defendánt offering no testimony in his own behalf, except his own, shall be entitled to the concluding argument before the jury.”
The statutory provision at issue granting the defendant closing argument rights
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Join FLexlaw to unlock all legal intelligenceSmith was convicted of manslaughter. The trial court denied Smith's counsel the right to make opening argument to the jury, limiting him to closing ar…
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Appellant was convicted of manslaughter and on this appeal he says the trial court erred in denying his counsel the right to make the opening argument to the jury. . He relies upon Sec. 918.09, F.S. ’41, F.S.A., which provides:
“. . . a defendánt offering no testimony in his own behalf, except his own, shall be entitled to the concluding argument before the jury.”
It was the view of the trial judge that inasmuch as the statute was silent as to the right to make the opening argument he was only entitled to the closing. This precise question has never been presented to us although we have had occasion to comment upon the purpose and. propriety of an argument to the jury. See Andrews v. State, 99 Fla. 1350, 126 So. 751. In the absence of the statute quoted above the right to open and close the argument would have gone to the State inasmuch as the burden of proof rested upon the State. The question is, did the statute in such enumerated- case reverse the order of argument?
Orderly procedure would seem to require that he, who makes the last argument, must, first, and before the opposition has argued, fairly present his opening argument.
It is contended by the State, and with apparent merit, that appellant was not injured by the error inasmuch as he had the closing argument. We do not agree that such is the case because from our experience the first impression created is frequently the lasting one. Some attorneys might prefer *150the opening argument to the closing. There is also the chance that some jurors might be more receptive to an opening argument. Then, also, if the matter should be left to the choice of the presiding judge the application of the rule would surely prove awkward and confusing, for when the State would have the opening and closing and the Court should rule as in this case, the defense would be deprived of answering the argument of the State.
Having concluded that in cases coming within the scope of this statute the order of argument is reversed; then, what we have said in other cases relating to the order of argument is equally applicable here.
The remaining question relates to the sufficiency of the evidence and since the judgment must be reversed on the first question, we make no comment on the last.
The judgment is reversed.
BUFORD, C. J., TERRELL and CHAPMAN, JJ., concur.
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Citator
Cited By
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Birge v. State, 92 So. 2d 819 (Fla. 1957)…e jury.” We have consistently held that the right guaranteed to an accused .-by the cited statute is a vested procedural right the denial of which constitutes reversible error. Lopez v. State, Fla. 1953, 66 So. 2d 807; Smith v. State, 155 Fla. 148, 19 So. 2d 698; Hall v. State, 119 Fla. 38, 160 So. 511; Landrum v. State, 79 Fla. 189, 84 So. 535; Meade v. State, Fla.1956, 85 So. 2d 613. As recently as Wright v. State, Fla.1956, 87 So. 2d 104, we recognized the preposition that while a trial judge may exercis…
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Jewell Faulk v. State, 104 So. 2d 519 (Fla. 1958)…as related to the case at bar is obvious. The mere fact that several defendants are represented by the same lawyer is not a factor to consider in applying the statutory privilege granted to those on trial for crime. In Smith v. State, 155 Fla. 148, 19 So. 2d 698, this court further construed the statute as vesting in an accused under the circumstances prescribed by the statute the privilege of making the opening argument as well as the closing argument even though the statute does not in so many words grant…
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Warfield Raymond Wike, Jr. v. State, 648 So. 2d 683 (Fla. 1994)…rden of proof had the right to begin and conclude the argument to the jury. Huston v. Green, 91 Fla. 434, 108 So. 846 (1926). The rule applied to both civil and criminal cases. Faulk v. State, 104 So. 2d 519 (Fla.1958); Smith v. State, 155 Fla. 148, 19 So. 2d 698 (1944). The rationale behind this common law rule was to provide the party who shouldered the disadvantage of the burden of proof with the advantage of the opening and closing arguments before the jury. Faulk. In 1853, this common law rule was chang…
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- Andrews v. State, 99 Fla. 1350 (Fla. 1930)