ROBERT JAMES MCDUFFIE, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
Robert James McDuffie appeals his conviction for grand larceny. The appellate court affirmed the conviction, holding that the trial judge's remark during closing argument did not constitute reversible error because it was not objected to at trial and did not constitute fundamental error affecting the trial's legality.
The trial judge's remark was not reversible error because (1) defense counsel did not object at trial or raise it in the motion for new trial, making it not subject to appellate review, and (2) it did not constitute fundamental error, as the trial court properly instructed the jury on the lesser included offense of petit larceny and the victim's testimony regarding the amount was unchallenged.
[1] A trial court's remark during closing arguments is not subject to appellate review if the defense failed to object, move for a curative instruction, or raise the remark i…
[2] A trial court's remark does not constitute fundamental error if the error does not reach down into the legality of the trial to such an extent that a guilty verdict could…
Previewing 2 of 4 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 only question that you have to decide on is whether or not this defendant was the one who was involved.”
The trial judge's statement that the jury need only determine defendant's identity, not the amount of money taken, which the defendant argued constituted improper comment on an element of the crime.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceJames Johnson fell asleep on a park bench with approximately $165 in his pocket. Witness Mr. Outler observed the defendant walk up to Johnson and remo…
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PER CURIAM.
Defendant, Robert James McDuffie, appeals his conviction for grand larceny.
On the day in question the victim, James Johnson, had approximately $165 in his pocket when he fell asleep on a park bench. At this time a Mr. Outler observed the defendant walk up to Johnson and remove his money and watch. Mr. Outler notified the police of the incident and the defendant was arrested. An information was filed charging the defendant with grand larceny of the $165. A trial ensued and during the prosecutor’s closing argument to the jury, wherein he was explaining the elements of the crime charged, the trial judge interrupted with the following remark:
“THE COURT: As a matter of fact, so the record is straight, you do not have to consider that at all. Through stipulation of counsel at side-bar, you need not make any decision where it occurred or the date that it was alleged-to have occurred on. The only question that you have to decide on is whether or not this defendant was the one who was involved. Proceed, Counsel.”
The jury returned a verdict of guilty of grand larceny.
Defendant contends the above remark was improper and amounted to a comment upon a very significant issue in question, whether the money taken was in excess of $100. By this remark, the defendant argues, the court indirectly commented that there was no question as to whether or not the amount of money taken exceeded $100, requiring a new trial. We cannot agree.
First, defense counsel did not object to this remark, made no motion for a curative instruction and did not raise this remark as one of the grounds in his motion for new trial. We, therefore, find this remark is not subject to review in this forum. See Foreman v. State, 47 So. 2d 308 (Fla.1950); McCrea v. State, 210 So. 2d 724 (Fla.3d DCA 1968).
Furthermore, we are unconvinced that the remark constituted fundamental error as the error did not reach down into the legality of the trial itself to such an extent that a verdict of guilty could not have been obtained without the assistance of the above remark. See Hamilton v. State, 88 So. 2d 606 (Fla.1956); Sanford v. Rubin, 237 So. 2d 134 (Fla.1970). The record reflects that the trial judge repeatedly instructed the jury that it could return a verdict for petit larceny as a lesser included offense of grand larceny. In addition, the victim’s testimony as to the amount of money taken went unchallenged. Cf. Rembert v. State, 311 So. 2d 199 (Fla.3d DCA 1975).
Affirmed.
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Cited By
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Colon v. State, 730 So. 2d 780 (Fla. 3d DCA 1999)…ich either were or could have been raised on direct appeal); Eason v. State, 632 So. 2d 191, 192 (Fla. 3d DCA 1994). As to Colon’s remaining argument regarding the judge’s alleged improper comments and jury instruction, citing to McDuffie v. State, 343 So. 2d 95 (Fla. 3d DCA 1977), we did indeed conclude on the direct appeal that Colon had waived these issues where his defense counsel failed to interpose contemporaneous objections below. See Colon, 660 So. 2d at 1135 (citing to McDuffie, 343 So. 2d at 95).…
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Colon v. State, 660 So. 2d 1135 (Fla. 3d DCA 1995)…PER CURIAM. Affirmed. See Roman v. State, 475 So. 2d 1228 (Fla.1985), cert. denied, 475 U.S. 1090, 106 S.Ct. 1480, 89 L.Ed.2d 734 (1986); Lynch v. State, 293 So. 2d 44 (Fla.1974); McDuffie v. State, 343 So. 2d 95 (Fla. 3d DCA 1977); Reyes v. State, 155 So. 2d 663 (Fla. 3d DCA 1963).…
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MOE v. State, 476 So. 2d 760 (Fla. 3d DCA 1985)…2d 955 (Fla.1984); Frenette v. State, 158 Fla. 675, 29 So. 2d 869 (1947); Bonham v. State, 450 So. 2d 269 (Fla. 3d DCA 1984); Stanley v. State, 357 So. 2d 1031 (Fla.3d DCA 1978); White v. State, 348 So. 2d 1170 (Fla. 3d DCA 1977); McDuffie v. State, 343 So. 2d 95 (Fla. 3d DCA 1977); Abbott v. State, 334 So. 2d 642 (Fla. 3d DCA 1976); Rodriguez v. State, 327 So. 2d 903 (Fla. 3d DCA 1976).…
Authorities Cited
- Sanford v. Rubin, 237 So. 2d 134 (Fla. 1970)
- Foreman v. State, 47 So. 2d 308 (Fla. 1950)
- Hamilton v. State, 88 So. 2d 606 (Fla. 1956)
- Cash v. State, 311 So. 2d 199 (Fla. 3d DCA 1975)
- McCREA v. State, 210 So. 2d 724 (Fla. 3d DCA 1968)