PASQUALE IANNUCCI, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE

Fla. 5th DCA | 1981-06-17
No. 80-706
ORFINGER and COWART, JJ., concur.
400 So. 2d 139 Florida District Court of Appeal, Fifth District (1981) Positive Treatment
Cited by 2 cases

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.

Synopsis

Iannucci appealed his robbery conviction, challenging a trial judge's rebuke of his defense counsel and arguing his sentence was improper. The court affirmed the conviction but remanded for resentencing to correct the erroneous inclusion of "hard labor" language and to ensure proper credit for time served.


Holding

The court held that the judge's comment did not constitute fundamental error because defense counsel failed to object at trial and the comment was not severely prejudicial, particularly since counsel invited the rebuke by attempting to mislead the jury. However, the court held that the sentence was improper and required remand for resentencing to strike the "at hard labor" phrase and to specify the amount of credit for time served.


Headnotes

[1] A defendant waives the right to raise an issue on appeal concerning a trial judge's comment during closing arguments unless the comment constitutes fundamental error or a…

[2] A trial court's sentence must specify the amount of credit for time served in jail prior to sentencing.

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

Key Quotes

“unless the comment was so prejudicial as to constitute fundamental error, Iannucci waived his right to raise this issue on appeal”

Establishes the waiver doctrine for trial judge comments not objected to at trial, requiring fundamental error standard for appellate review

Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.

Join FLexlaw to unlock all legal intelligence

Facts & Procedural History

Iannucci was convicted of robbery following a jury trial on February 4, 1975. During final arguments, defense counsel attempted to characterize Iannuc…

The full statement of facts, procedural history, and disposition for this case are member content.

Join FLexlaw to unlock all legal intelligence

© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.


Opinion of the Court
SHARP, Judge.

SHARP, Judge.

Iannucci appeals his judgment and sentence for the offense of robbery.1 He argues that a comment by the trial judge prejudiced the jury and that the sentence improperly required hard labor and did not allow him credit for time previously served. We affirm the judgment but remand for resentencing.

Iannucci asserts that he was substantially prejudiced when the trial judge rebuked defense counsel during final arguments.2 However, defense counsel did not object to the judge’s comment at trial and therefore, unless the comment was so prejudicial as to constitute fundamental error, Iannucci waived his right to raise this issue on appeal. See White v. State, 348 So. 2d 368 (Fla. 3d DCA 1977), reversed in part, 377 So. 2d 1149 (Fla.1979), vacated in part, 379 So. 2d 1018 (Fla. 3d DCA 1980). The judge’s comment does not appear to us as severely prejudicial, and in fact appellant’s counsel invited the judge’s comment by his own attempt to mislead the jury as to the kinds of crimes for which Iannucci had previously been convicted.

" The State concedes that the sentence erroneously included the surplus phrase “at hard labor” and did not specify the amount of credit for time Iannucci served in jail before sentencing. Section 921.161(1), Florida Statutes (1975), provides that such credit “must be for a specified period of time and shall be provided for in the sentence.” Because the record does not indicate the amount of credit, we remand this case for resentencing. Kreiser v. State, 380 So. 2d 455 (Fla. 5th DCA 1980). The term “at hard labor” also should be stricken. Appellant need not be present for the sentence correction proceeding. Hensley v. State, 363 So. 2d 352 (Fla. 2d DCA 1978).

AFFIRMED AND REMANDED FOR RESENTENCING.

ORFINGER and COWART, JJ., concur. . This is a belated appeal stemming from a jury trial on February 4, 1975. Appellant’s first notice of appeal, filed on-March 24, 1975, was dismissed on jurisdictional grounds. After the United States District Court for the Middle District of Florida granted appellant’s petition for writ of habeas corpus, this court accepted the notice of appeal filed June 18, 1980, as valid.

. The following quotation from the trial transcript includes the alleged prejudicial rebuke:

[DEFENSE COUNSEL]: [The prosecutor] made the comment, I believe, in his first argument, I think I want to bring out first, I mentioned it before, and that’s talking about these crimes. I want you all to remember and reflect back when we were having our voir dire, when we were discussing the matters with you, the picking of the jury. You recall [the prosecutor] asked the question, is there anybody here, most of you were present there. We had a panel of about eighteen people. And [the prosecutor] asked the question, has anybody been convicted of a crime? Two people raised their hand. He kind of looked at you in disbelief and said, I mean nobody that’s ever been stopped for a speeding ticket or a red light. I think we all felt kind of, well, yeah, of course, and many, many more hands went up.

So we are talking about definition here. We are talking about definition.

He is not on trial here for any crimes in the past. Most of us have been convicted of a crime before, a speeding ticket.

THE COURT: [Counsel], are you implying to this jury that this man’s prior record is just traffic offenses?

[DEFENSE COUNSEL]: No, your honor, I’m not. I’m referring to the voir dire examination that [the prosecutor] gave.

THE COURT: That would be misleading the jury.

[DEFENSE COUNSEL]: I’m not, but the point I’m trying to make is that that is a fact, that is a fact, that is not what we are trying here today.


Cases With Similar Vibessemantic neighbors from the corpus


Citator

Cited By

  • Crabtree v. State, 624 So. 2d 743 (Fla. 5th DCA 1993)
    …irm the sentence but remand to the trial court to correct Crabtree’s judgment to reflect his conviction for a first degree felony, and to strike the condition of hard labor. See Gandy v. State, 560 So. 2d 1363 (Fla. 1st DCA 1990); Iannucci v. State, 400 So. 2d 139 (Fla. 5th DCA 1981); Evans v. State, 395 So. 2d 1242 (Fla. 5th DCA 1981); Pryor v. State, 390 So. 2d 475 (Fla. 5th DCA 1980); McDonald v. State, 321 So. 2d 453, 458 (Fla. 4th DCA 1975), rev. on other grounds after remand, 345 So. 2d 755 (Fla. 4th DC…

Authorities Cited

Full citator, related cases, and AI research tools

Open in FLexlaw