MCCORD WAYNE PITTMAN, ANTHONY DAVID MOND, JEFFREY ALLEN RUSSELL, ENOS LEROY RUSSELL AND ERNEST CLIFFORD RUSSELL, APPELLANTS,
v.
STATE OF FLORIDA, APPELLEE
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The court held that limiting closing arguments to 30 minutes in a complex, multi-defendant trial was an abuse of discretion.
[1] A trial court abuses its discretion by unreasonably limiting the time for closing arguments, considering factors such as the severity of potential sentences, conflicts in…
[2] A defendant is not entitled to the concluding closing argument if they are not a party to the appeal.
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Join FLexlaw to unlock all legal intelligenceSeven defendants were tried together for various offenses related to a noisy party and resisting arrest. The trial court limited closing arguments to …
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MILLS, Judge.
In this criminal action, the issues on appeal relate to whether the trial court abused its discretion in limiting the amount of time for closing argument, whether one of the defendants should have been allowed to have the concluding argument before the jury, and whether the trial court should have charged the jury on a defendant’s right to resist the use of unlawful or excessive force when being arrested.
On the night in question, deputies from the Bay County Sheriffs Department twice responded to neighbors’ complaints about a noisy party at a young woman’s house. After being greeted at the door with profanity upon their second visit, the deputies declared the party an “unlawful assembly” and ordered the partygoers to disperse. A fracas broke out at that point. Arrested and charged with violating Section 843.01, Florida Statutes (1981), were Anthony David Mond, Jeffrey Alan Russell, Enos Leroy Russell, James Edward Schmidt, McCord Wayne Pittman, Thomas Michael Llewellyn, and Ernest Clifford Russell. In addition to these charges, Llewellyn was charged with grand theft in the taking of a deputy’s flashlight, and Mond was charged with grand theft in the taking of a deputy’s walkie talkie.
All seven defendants were tried together; all were represented by the same attorney. At the conclusion of a lengthy trial, the trial court, over objection by defense counsel, limited the time for closing argument to 30 minutes. The defense attorney also asserted on behalf of Schmidt that, pursuant to Rule 3.250, Florida Rules of Criminal Procedure, he was entitled to the concluding argument before the jury because Schmidt presented no evidence other than his own testimony. He further orally requested a jury instruction on the defendants’ right to defend themselves against the use of unlawful force by the deputies. That request was denied, and the trial court gave Florida Standard Jury Instruction 3.04(d).
Pittman; Mond, and E.L. Russell were convicted for violating Section 843.01, Florida Statutes (1981). E.C. Russell, J.A. Russell, and Schmidt were convicted for violating Section 843.02, Florida Statutes (1981). Both Mond and Llewellyn were acquitted on the grand theft charges. (Llewellyn was also convicted for violating Section 843.02. However, he had previously pled nolo con-tendere in county court to the identical charge arising out of the same incident. The trial court therefore dismissed the circuit court conviction.) This timely appeal followed the trial court’s denial of the defendants’ motion for new trial.
Generally, the time allowed for closing argument by counsel is within the discretion of the trial court. May v. State, 89 Fla. 78, 103 So. 115 (1925). That discretion is not unbridled, however, and reversal is required where the time for argument is unreasonably limited. What amounts to a reasonable time depends upon the facts and circumstances of each case. Id.
In May, it was held that limitation of argument to 20 minutes was an abuse of discretion considering the severity of the potential sentence, the sharp conflicts in testimony, and the number of witnesses testifying. In Cooper v. State, 106 Fla. 254, 143 So. 217 (1932), it was held that limiting closing argument to five minutes was, on its face, an abuse of discretion. A limitation of closing argument to 30 minutes was held not to be an abuse of discretion in McDuffee v. State, 55 Fla. 125, 46 So. 721 (1908). However, the Florida Supreme Court noted in that case that the trial was short, that the transcript covered only eleven pages, and that only four witnesses testified for each side.
In the instant case, there were a total of 33 witnesses. There were seven different defendants, each of whom was charged with a third degree felony, and two of whom were charged with two third degree felonies. Counting voir dire, this trial took approximately four days and covered over 700 pages of transcript. In view of the foregoing facts and authority, limitation of argument in this case to 30 minutes was an abuse of discretion, and we are compelled to reverse and remand for a new trial.
In so doing, we do not decide the issue of whether Schmidt was entitled to the concluding argument before the jury because he is not a party to this appeal. All seven defendants moved for a new trial, and one of the matters assigned as error was the trial court’s failure to allow Schmidt to have the concluding argument. That motion was denied as to six of the defendants, but the trial court postponed ruling on the motion as it pertained to Schmidt until it could be determined whether he had presented any evidence in his behalf other than his own testimony. The notice of appeal does not name Schmidt as an appellant. Therefore, Schmidt’s motion for new trial-is apparently still before the trial court.
Finally, for the benefit of the trial court and counsel upon remand, we note that this Court has now declared to be erroneous that portion of Florida Standard Jury Instruction 3.04(d) which states that a person is never justified in the use of any force to resist arrest. Ivester v. State, 398 So. 2d 926 (Fla. 1st DCA 1981); Allen v. State, 424 So. 2d 101 (Fla. 1st DCA 1982). However, when counsel requests a jury instruction that is not part of the Florida Standard Jury Instructions, the requested instruction must be submitted in writing to the trial court if the issue is to be preserved for appellate review. Rule 3.390(c), Florida Rules of Criminal Procedure; Holley v. State, 423 So. 2d 562 (Fla. 1st DCA 1982).
REVERSED and REMANDED.
SHIVERS and ZEHMER, JJ„ concur.
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Scott v. State, 808 So. 2d 166 (Fla. 2002)…ctions must be submitted to the trial court in writing if the issue is to be preserved for appellate review. See Gavlick v. State, 740 So. 2d 1212, 1213 (Fla. 2d DCA 1999); Watkins v. State, 519 So. 2d 760, 761 (Fla. 1st DCA 1988); Pittman v. State, 440 So. 2d 657, 659 (Fla. 1st DCA 1983); Holley v. State, 423 So. 2d 562, 564 (Fla. 1st DCA 1982). See also Fla. R.Crim. P. 3.390(c). This was the assumption under which I worked as a trial judge in the Fourth Judicial Circuit for many years. In Brown v. State, 2…
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Stockton v. State, 544 So. 2d 1006 (Fla. 1989)…ds, the setting of time limits for closing argument rests in the discretion of the trial judge. May v. State, 89 Fla. 78, 103 So. 115 (1925). What constitutes a reasonable time depends upon the facts and circumstances of each case. Pittman v. State, 440 So. 2d 657 (Fla. 1st DCA 1983). This two-day trial involved one charge against one defendant. There were no serious legal issues but only disputes in the testimony concerning who fired the fatal shot. Under the circumstances of this case, I cannot say as a mat…1 / 2
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Foster v. State, 464 So. 2d 1214 (Fla. 3d DCA 1984)…me for defense counsel’s final argument to the jury. Such convictions have been reversed where defense counsel’s final argument was limited to thirty minutes in a grand theft and resisting arrest case involving multiple defendants, Pittman v. State, 440 So. 2d 657 (Fla. 1st DCA 1983), to twenty-five minutes in a first degree murder case, Neal v. State, 451 So. 2d 1058 (Fla. 5th DCA 1984), to twenty minutes in an assault with intent to commit murder case, May v. State, supra, to ten minutes in a burglary and g…1 / 2
Previewing 3 of 9 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Harrison v. Simpson, 106 Fla. 254 (Fla. 1932)
- May v. State, 89 Fla. 78 (Fla. 1925)
- Ivester v. State, 398 So. 2d 926 (Fla. 1st DCA 1981)
- Short v. State, 423 So. 2d 562 (Fla. 2d DCA 1982)
- Holley v. State, 423 So. 2d 562 (Fla. 1st DCA 1982)
- McDuffee v. State, 55 Fla. 125 (Fla. 1908)
- Mackie Roy Allen v. State, 424 So. 2d 101 (Fla. 1st DCA 1982)