WILLIE DUNN, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Willie Dunn was convicted by jury of uttering a forged instrument, unlawful possession of a forged instrument, and attempted grand larceny. He appealed, arguing the trial judge erred by failing to declare a mistrial after a police officer testified about evidence (an international driver's license) that Dunn argued suggested another crime. The appellate court affirmed the convictions and sentences.
The trial judge did not abuse discretion in denying the mistrial motion because such motions should not be granted mid-trial unless there is absolute legal necessity, and defendant's contention that the testimony evidenced another crime was mere speculation and conjecture. Even if error occurred, it was not fundamental error.
[1] A motion for mistrial should not be granted during a criminal trial unless there is an absolute legal necessity to stop the trial and discharge the jury.
[2] Speculation and conjecture regarding testimony do not constitute grounds for a mistrial.
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Join FLexlaw to unlock all legal intelligence“such a motion should not be granted in the middle of a criminal trial unless there is an absolute legal necessity to stop the trial and discharge the jury”
Establishes the strict standard for granting mistrials during trial, requiring absolute legal necessity.
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Join FLexlaw to unlock all legal intelligenceAfter trial, Dunn was convicted on three counts: uttering a forged instrument, unlawful possession of a forged instrument, and attempted grand larceny…
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PER CURIAM. After a trial by jury defendant Willie Dunn was convicted for (1) uttering a forged instrument, (2) unlawful possession of a forged instrument and (3) attempted grand larceny. He was given sentences of 30 months each on counts 1 and 2 and one year on count 3 above, all sentences to be served concurrently. Dunn urges as error, failure of the trial judge to declare a mistrial after a police officer gave testimony relating to a crime for which he was not being tried. This alleged error arises out of the following colloquy between the prosecuting attorney and Tampa police detective Dennis D. Kop-lin who was called as a state witness for the limited purpose of testifying as to Dunn’s flight to avoid prosecution and evasion of prosecution: sf! sf: Jjs * * “Q. (By Mr. Munroe) Did you have occasion to ask him for any identification showing that he was, in fact, Willie James Palmer? “A. Yes, sir. “Q. Did he produce any identification? “A. He had none on his person. We had seized other identification which he stated was his. 0; sf: sfs >f! sfc sfs “Q. And what is that object, sir? “A. International driver license. “Q. And where did you first see that item, sir? “A. It was turned over to me from a uniformed officer. Defense counsel moved for mistrial on the ground this testimony indicated to the jury that Dunn was in fact in custody and, therefore, this was evidence of another crime. The motion was denied.
We find no abuse in the court’s denial of the motion for mistrial as such a motion should not be granted in the middle of a criminal trial unless there is an absolute legal necessity to stop the trial and discharge the jury. See Kelly v. State, 202 So. 2d 901 (Fla. 2d DCA 1967). At best, Dunn’s contention that this testimony evidenced to the jury another crime for which he was not being tried is mere speculation and conjecture. Further, we conclude that if there was error, then, under the circumstance, it was not fundamental. See Ashford v. State, 274 So. 2d 517 (Fla. 1973); Marion v. State, 287 So. 2d 419 (Fla. 4th DCA 1974). We also considered defendant’s second point on appeal that the sentences were improper and find no error. See Jenkins v. Wainwright, 322 So. 2d 477 (Fla. 1975).
Affirmed.
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Bush v. State, 461 So. 2d 936 (Fla. 1984)…se counsel having asked two different questions. The prosecutor’s failure to inform the defense of this change of testimony is not a discovery violation and does not constitute the absolute legal necessity required for a mistrial. See Dunn v. State, 341 So. 2d 806, 807 (Fla. 3d DCA 1977). When testimonial discrepancies appear, the witness’ trial and deposition testimony can be laid side-by-side for the jury to consider. This would serve to discredit the witness and should be favorable to the defense. Therefo…
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Courtney v. State, 358 So. 2d 1107 (Fla. 3d DCA 1978)…1 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), and relied upon by appellant, are not applicable. Further, we hold that no reversible error resulted from this incident. See, e. g., Thomas v. State, 326 So. 2d 413 [*1109] (Fla.1975); Dunn v. State, 341 So. 2d 806 (Fla. 3d DCA 1977); Abbott v. State, 334 So. 2d 642 (Fla. 3d DCA 1976); Bullard v. State, 324 So. 2d 652 (Fla. 1st DCA 1975); Gray v. State, 310 So. 2d 320 (Fla. 3d DCA 1975); and Wilcox v. State, 299 So. 2d 48 (Fla. 3d DCA 1974). Accordingly, appel…
Authorities Cited
- Jenkins v. Louie L. Wainwright, 322 So. 2d 477 (Fla. 1975)
- Coy Kelly v. State, 202 So. 2d 901 (Fla. 2d DCA 1967)
- Ashford v. State, 274 So. 2d 517 (Fla. 1973)
- Marion v. State, 287 So. 2d 419 (Fla. 4th DCA 1974)