EDWARD L. DAVIS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Davis was tried jointly with a co-defendant whose incriminating statement was admitted at trial despite referencing Davis and being hearsay against him. The court rejected Davis's mid-trial motion for severance, holding that the trial court did not abuse its discretion in refusing to apply mandatory remedies under the rules when the severance motion was untimely and made well into trial.
The trial court did not abuse its discretion by hearing the untimely severance motion but declining to impose the mandatory remedies. The trial court may consider factors such as the untimeliness of the motion, absence of mitigating circumstances, the practical impossibility of excision without harming admissible evidence against the declarant, and the existence of independent evidence incriminating the defendant.
[1] A trial court has discretion to entertain a motion for severance made during trial, even if the motion is untimely.
[2] A trial court is not automatically bound to grant severance or other remedies under Fla.R.Crim.P. …
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 trial court does not become bound to them, irrespective of other considerations, merely by hearing a tardy motion in midtrial”
Establishes that entertaining a late severance motion does not automatically trigger mandatory remedies under the rules
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Join FLexlaw to unlock all legal intelligenceDavis and a co-defendant were tried jointly. The co-defendant made a statement incriminating both herself and Davis. This statement was offered into e…
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SMITH, Judge.
A co-defendant’s statement incriminating herself and Davis was received in evidence in their joint trial, over Davis’ objection. Although the statement contained hearsay inadmissible against Davis, his counsel knew of the statement long before the trial and made no motion for severance until the trial was well under way. The motion for severance was untimely under Fla.R.Crim.P. 3.153,1 but the trial court had discretion under the same rule to entertain the motion, which the court here did. Davis here contends that, having heard or “entertained” the motion in midtrial, the court was powerless to do other than require the State then to elect as between (a) withdrawing its offer of the statement, (b) deleting its references to Davis, which would have excised significantly incriminating admissions by the declarant, or (c) severing Davis for another trial. Fla.R.Crim.P. 3.152(b)(2).
See Davis v. State, 226 So. 2d 257 (Fla. 2d DCA 1969).
Considering the untimeliness of the motion, the absence of circumstances mitigating its untimeliness, the absence of a practical way to excise the statement’s references to Davis without significantly detracting from admissible evidence against the declarant, and the independent evidence incriminating Davis much as did the hearsay, we find no reversible error.
The jury was charged to consider the statement as evidence against the declarant only. To force other alternative dispositions on the trial court as a consequence of listening to the tardy motion would do no more than discourage “entertainment” of meritorious motions. An impermeable consciousness is not a judicial attribute. Unquestionably there are circumstances in which Rule 3.152(b)(2) requires a choice between its three alternative remedies even when the motion is late, but the trial court does not become bound to them, irrespective of other considerations, merely by hearing a tardy motion in midtrial. Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968) contemplates a pretrial motion for severance as the appropriate means for obtaining the relief sought, and does not require a different result.
Davis’ other points are without merit.
AFFIRMED.
McCORD, C. J., and RAWLS, J., concur. . “(a) A defendant’s motion for severance of multiple offenses or defendants . . , shall be made before trial unless opportunity therefor did not exist or the defendant was not aware of the grounds for such a motion but the court in its discretion may entertain such a motion at the trial.”
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Citator
Cited By
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Graham v. State, 356 So. 2d 881 (Fla. 3d DCA 1978)…e Johnsen v. State, 332 So. 2d 69 (Fla.1976); McDole v. State, 283 So. 2d 553 (Fla.1973); Williams v. State, 110 So. 2d 654 (Fla.1959); Redditt v. State, 84 So. 2d 317 (Fla.1955); Louette v. State, 152 Fla. 495, 12 So. 2d 168 (1943); Davis v. State, 349 So. 2d 205 (Fla. 1st DCA 1977); Shapiro v. State, 345 So. 2d 361 (Fla.3d DCA 1977); Frierson v. State, 339 So. 2d 312 (Fla.3d DCA 1976); Wilson v. State, 305 So. 2d 50 (Fla.3d DCA 1974); Lawson v. State, 304 So. 2d 522 (Fla.3d DCA 1974); Foster v. State, 266 S…
Authorities Cited
- Bruton v. United States, 391 U.S. 123 (U.S. 1968)
- Davis v. State, 226 So. 2d 257 (Fla. 2d DCA 1969)