DAVID MILLER SMITH, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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The court held that the prosecutor's remarks did not constitute reversible error, but the sentence improperly included 'hard labor' which lacked statutory authority.
Appellant was convicted of unlawful possession of burglary tools, attempted trespass, and attempted petit larceny, and sentenced to three years for th…
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PER CURIAM.
Appellant was found guilty of unlawful possession of burglary tools, attempted trespass and attempted petit larceny. He was adjudged guilty and sentenced to a term of three years at hard labor in the state penitentiary as to the possession of burglary tools count. Sentences were withheld as to the two other counts.
Appellant seeks reversal of his convictions on the ground that the trial court erred in failing to grant his motion for new trial based upon the grounds that the prosecuting attorney made improper remarks in his closing argument to the jury that deprived appellant of a fair and impartial trial.
We have carefully considered the record, briefs and arguments of counsel and have concluded that the remarks of the prosecutor were not so harmful or fundamentally tainted so as to require a new trial. No reversible error having been shown, the convictions must be affirmed. Olivia v. State, 346 So. 2d 1066 (Fla. 3d DCA 1977).
Appellant has also questioned the legality of the sentence insofar as it provides that the appellant is to serve his term in the penitentiary at “hard labor.” We agree that the trial court erred in specifying that appellant serve his sentence at “hard labor” for there is no longer statutory authority for the “hard labor” provisions of the sentence. Accordingly, the words “hard labor” are hereby stricken and the sentence is affirmed as amended. Speller v. State, 305 So. 2d 231 (Fla. 2d DCA 1974).
Affirmed as amended.
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Cited By
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Blair v. State, 406 So. 2d 1103 (Fla. 1981)…. 1010, 98 S.Ct. 719, 54 L.Ed.2d 752 (1978). They did not “materially contribute to this conviction”, Zamot v. State, 375 So. 2d 881, 883 (Fla. 3d DCA 1979) were not “so harmful or fundamentally tainted so as to require a new trial”, Smith v. State, 354 So. 2d 477, 478 (Fla. 3d DCA 1978); and were not so inflammatory that they “might have influenced the jury to reach a more severe verdict of guilt than it would have otherwise ... ”, Darden v. State, 329 So. 2d 287, 289 (Fla.1976), cert. dismissed, 430 U.S. 70…
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Gamble v. State, 355 So. 2d 494 (Fla. 3d DCA 1978)…andatory three-year sentence provision was not applicable, citing Earnest v. State, 351 So. 2d 957 (Fla.1977); Johnson v. State, 349 So. 2d 1190 (Fla.1977), and that it was incorrect for the sentence to provide for hard labor, citing Smith v. State, 354 So. 2d 477 (Fla. 3d DCA 1978), Case No. 77-72, opinion filed January 31, 1978; Wells v. State, 354 So. 2d 1221 (Fla.1978). [See also: Speller v. State, 305 So. 2d 231, 232 (Fla. 2d DCA 1974).] Accordingly, the sentences thus imposed are hereby amended by stri…
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Lopez v. State, 555 So. 2d 1298 (Fla. 3d DCA 1990)…flammatory that they might have influenced the jury to reach a more severe verdict than that which they would have reached otherwise. See Blair v. State, 406 So. 2d 1103 (Fla.1981); Zamot v. State, 375 So. 2d 881 (Fla. 3d DCA 1979); Smith v. State, 354 So. 2d 477 (Fla. 3d DCA 1978); Oliva v. State, 346 So. 2d 1066 (Fla. 3d DCA 1977), cert. denied, 434 U.S. 1010, 98 S.Ct. 719, 54 L.Ed.2d 752 (1978); James v. State, 334 So. 2d 83 (Fla. 3d DCA 1976); Darden v. State, 329 So. 2d 287 (Fla.1976), cert. dismissed,…
Authorities Cited
- Speller v. State, 305 So. 2d 231 (Fla. 2d DCA 1974)
- Metro. Dade Cnty. v. Dade Cnty. Emps., 346 So. 2d 1066 (Fla. 3d DCA 1977)