JAMES DELANEY, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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The court held that the defendant waived any errors regarding the verdict form and prosecutorial comments by failing to properly object or preserve the issues at trial.
[1] A defendant waives appellate review of the form of a verdict by failing to move the trial court to correct it.
[2] A defendant cannot complain on appeal about a prosecutor's comment during closing argument to which no objection was made at trial.
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Join FLexlaw to unlock all legal intelligenceThe defendant was charged with robbery, grand larceny, and resisting arrest. He was convicted of a lesser-included offense of grand larceny and resist…
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PER CURIAM.
The appellant was charged with robbery, grand larceny, and resisting arrest. He was tried before a jury, acquitted of Count I, convicted of a lesser-included offense under Count II, and convicted under Count III.
On appeal, error is asserted in the form of the verdict as rendered in the conviction for the lesser-included offense under Count II, and that the trial judge should have declared a mistrial because of the alleged improper comment by counsel during closing argument.
As to the first error urged, no motion was directed to the trial court to correct the form of the verdict and, therefore, no error has been preserved for review by this court. Benitez v. State, 172 So. 2d 520 (Fla. 4th D.C.A. 1965); Hall v. State, 203 So. 2d 202 (Fla. 2nd D.C.A. 1967); Jones v. State, 248 So. 2d 517 (Fla. 3rd D.C.A. 1971); McPhee v. State, 254 So. 2d 406 (Fla. 1st D.C.A. 1971); Kruglak v. State, 300 So. 2d 315 (Fla. 3rd D.C.A. 1974); State v. Barber, 301 So. 2d 7 (Fla.1974); Davis v. United States, 409 U.S. 841, 93 S.Ct. 193, 34 L.Ed.2d 80 (1973). Even if the proper motion had been made, it is doubtful that any error would have been made to appear. Russo v. State, 340 So. 2d 1273 (Fla. 4th D.C.A. 1976).
As to the second error urged, no objection to the first comment on the part of the prosecutor during closing argument was made and, therefore, no error has been made to appear in this regard. Rogers v. State, 158 Fla. 582, 30 So. 2d 625 (1947); State v. Jones, 204 So. 2d 515 (Fla.1967). Further, as to the second comment, upon objection by defense counsel the trial court offered to give a curative instruction and defense counsel requested he not do so. Therefore, the defendant will not now be heard to complain of this ruling. Further, it appears that the comment made by the prosecutor in closing argument, which was objected to, was nothing more than a valid comment on the evidence. Clinton v. State, 56 Fla. 57, 47 So. 389 (1908).
Therefore, for the reasons above stated, the jury’s verdict, adjudication and sentences here under review, be and the same are hereby affirmed.
Affirmed.
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Anderson v. State, 467 So. 2d 781 (Fla. 3d DCA 1985)…1977), cert. denied, 435 U.S. 1004, 98 S.Ct. 1660, 56 L.Ed.2d 93 (1978); Songer v. State, 322 So. 2d 481 (Fla. 1975), sentence vacated, 430 U.S. 952, 97 S.Ct. 1594, 51 L.Ed.2d 801 (1977); State v. Jones, 204 So. 2d 515 (Fla. 1967); Delaney v. State, 342 So. 2d 1098 (Fla. 3d DCA 1977).…
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Deliford v. State, 505 So. 2d 523 (Fla. 3d DCA 1987)…v. Cumbie, 380 So. 2d 1031, 1033 (Fla.1980); Clark v. State, 363 So. 2d 331, 334-35 (Fla.1978), and, (b) the complained-of argument was entirely proper in any event. See Francis v. State, 384 So. 2d 967, 968-69 (Fla. 3d DCA 1980); Delaney v. State, 342 So. 2d 1098, 1099 (Fla. 3d DCA 1977); Wilson v. State, 305 So. 2d 50, 52 (Fla. 3d DCA 1975). Third, we accept the state’s concession that the defendant’s sentencing point has merit. The Florida Supreme Court has held, subsequent to the imposition of sentence…
Authorities Cited (15 total)
- State v. Jones, 204 So. 2d 515 (Fla. 1967)
- State v. Barber, 301 So. 2d 7 (Fla. 1974)
- Rogers v. State, 158 Fla. 582 (Fla. 1947)
- McPHEE v. State, 254 So. 2d 406 (Fla. 1st DCA 1971)
- Buck Clinton and Edward Clinton v. State, 56 Fla. 57 (Fla. 1908)
- Hewall Inv. Co. v. Scott, 158 Fla. 795 (Fla. 1947)
- Earton David Jones v. State, 248 So. 2d 517 (Fla. 3d DCA 1971)
- Kelly v. Patek, 172 So. 2d 520 (Fla. 3d DCA 1965)
- Benitez v. State, 172 So. 2d 520 (Fla. 2d DCA 1965)
- Hall v. State, 203 So. 2d 202 (Fla. 4th DCA 1967)