MYRON MORALES, AND FLORENCIO VILLA, APPELLANTS,

v.

THE STATE OF FLORIDA, APPELLEE

Fla. 3d DCA | 1992-12-08

Nos. 92-325, 92-015

Before SCHWARTZ, C.J., and COPE and GERSTEN, JJ.

609 So. 2d 765 Florida District Court of Appeal, Third District (1992) Positive Treatment

Cited by 4 cases

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Holding

The trial court reversibly erred by denying a defendant the right to a concluding argument when the defendant offered no testimony except his own, as guaranteed by Florida Rule of Criminal Procedure 3.250.

Facts & Procedural History

Appellants Villa and Morales were convicted of burglary, grand theft, and resisting arrest. The trial court instructed the jury on flight and erroneou…

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

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Topics

Right To Concluding Argument Flight Instruction Resisting Arrest Grand Theft

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Opinion of the Court

PER CURIAM.

Appellants, Florencio Villa (Villa), and Myron Morales (Morales), appeal their convictions for burglary, grand theft, and resisting arrest. We affirm Morales’s conviction and reverse Villa’s conviction.

Villa and Morales cite error in the trial court’s instructing the jury on flight. Although the flight instruction was error, Fenelon v. State, 594 So. 2d 292 (Fla.1992), we find that the instruction was harmless in light of the overwhelming evidence against appellants. State v. DiGuilio, 491 So. 2d 1129 (Fla.1986).

We hold that the trial court reversibly erred in Villa’s case by deviating from Florida Rule of Criminal Procedure 3.250. Rule 3.250 gives a defendant offering no testimony in his own behalf, except his own, the right to a concluding argument before the jury.

Here, the trial court, over Villa’s objection, erroneously deemed classic and clear-cut cross-examination of a state witness as “beyond the scope of direct.” In doing so, the trial court stated that Villa was giving up his right to a concluding argument.

The right of an accused who offers no testimony in his own behalf, except his own, to be entitled to the concluding argument before the jury, is a vested procedural right. Denial of this right under Rule 3.250 constitutes reversible error. Birge v. State, 92 So. 2d 819 (Fla.1957); Raysor v. State, 272 So. 2d 867 (Fla. 4th DCA1973). Erroneous denial of the right to the concluding argument before the jury cannot be deemed harmless error. Hart v. State, 526 So. 2d 124 (Fla. 5th DCA1988).

In spite of the overwhelming evidence against Villa, the trial court did not scrupulously follow a required rule of procedure. Finding no merit in Morales’s other points, we affirm appellant Morales’s conviction, and reverse appellant Villa’s conviction.

Reversed and remanded for new trial.

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Citator

Cited By

Warfield Raymond Wike, Jr. v. State, 648 So. 2d 683 (Fla. 1994)

…ed reversible error. Heffron v. State, 8 Fla. 73 (1858). Throughout the years, Florida courts have never deviated from the holding that the denial of a defendant’s right to close under this rule constitutes reversible error. Faulk; Morales v. State, 609 So. 2d 765 (Fla. 3d DCA 1992); Graddy v. State, 606 So. 2d 1242 (Fla. 2d DCA 1992); Lamar v. State, 583 So. 2d 771 (Fla. 4th DCA 1991); Crowley v. State, 558 So. 2d 529 (Fla. 4th DCA 1990); Terwilliger v. State, 535 So. 2d 346 (Fla. 1st DCA 1988); Gari v. Stat…
Fidel Marin v. State, 624 So. 2d 808 (Fla. 3d DCA 1993)

…the defendant’s own, shall be entitled to the concluding argument before the jury.” This court has held that right to be a “vested procedural right,” the denial of which constitutes reversible error that cannot be deemed harmless. Morales v. State, 609 So. 2d 765, 766 (Fla.3d DCA 1992) (citing Birge v. State, 92 So. 2d 819 (Fla.1957)). Defendant’s proffered display of his leg would have been non-testimonial, and would not [*809] have caused him to forfeit his right to open and close closing argument. See Pet…

Authorities Cited

State v. DiGUILIO, 491 So. 2d 1129 (Fla. 1986)
King Anthony Green v. State, 594 So. 2d 292 (Fla. 1992)
Birge v. State, 92 So. 2d 819 (Fla. 1957)
Raysor v. State, 272 So. 2d 867 (Fla. 4th DCA 1973)
Hart v. State, 526 So. 2d 124 (Fla. 5th DCA 1988)

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