FIDEL MARIN, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Fidel Marin was convicted of driving under the influence after the trial court ruled he would forfeit his right to closing argument if he displayed his leg to the jury to demonstrate a disability affecting his sobriety test performance. The court reversed and remanded for a new trial, holding that displaying physical evidence is non-testimonial and does not trigger forfeiture of the statutory right to closing argument.
The trial court erred in ruling that defendant's proffered non-testimonial display of his leg would cause him to lose his right to open and close in closing argument. Display of a physical trait is non-testimonial and does not trigger forfeiture of the right to closing argument under rule 3.250. Even if the display were testimonial, it would constitute defendant's own testimony and would fall within the rule's parameters.
[1] A defendant offering no testimony except their own is entitled to the concluding argument before the jury.
[2] A defendant's display of a physical trait to the jury is non-testimonial and does not forfeit the right to open and close closing argument.
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Join FLexlaw to unlock all legal intelligence“a defendant offering no testimony in his or her own behalf, except the defendant's own, shall be entitled to the concluding argument before the jury.”
This establishes the statutory right under Florida Rule of Criminal Procedure 3.250 that the trial court violated by conditioning it on the defendant's decision not to display his leg.
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Join FLexlaw to unlock all legal intelligenceMarin was charged with driving under the influence and sought to display his leg to the jury as visible evidence of a disability that allegedly affect…
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PER CURIAM.
Fidel Marin appeals from a judgment of conviction and sentence for driving under the influence. For the following reason, we reverse and remand for a new trial.
At trial, defendant sought to display his leg to the jury to show visible evidence of a disability that allegedly affected his performance of roadside sobriety tests. The trial court ruled that if defendant displayed his leg he would forfeit his right to open and close in closing argument. Defendant chose not to display his leg.
The trial court erred in ruling that defendant’s proffered display of a physical trait would cause him to lose his right to open and close in closing argument. Fla. R.Crim.P. 3.250 provides that “a defendant offering no testimony in his or her own behalf, except 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 have caused him to forfeit his right to open and close closing argument. See Pettit v. State, 612 So. 2d 1381 (Fla.2d DCA 1992) (defendant’s display of tattooed arms to jury non-testimonial); Smith v. State, 574 So. 2d 1195, 1196 n. 3 (Fla.3d DCA 1991) (same), approved sub nom State v. Washington, 594 So. 2d 291 (Fla.1992). Even if the display were testimonial, the testimony would have been defendant’s own and would have fallen squarely within the parameters of rule 3.250.
Because we reverse on the above stated ground, we need not reach the other grounds advanced for reversal.1 However, the State properly concedes that defendant’s sentence entered on DUI charges filed in Circuit Court case number 92-31026 is illegal and must be corrected on remand.2 As a special condition of probation, the trial court imposed a four year sentence of imprisonment. Section 948.03(5), Florida Statutes (1991) provides that “a period of incarceration as a condition of probation ... shall not exceed 864 days.” Accordingly, we vacate the illegal sentence and remand for resentencing as to that conviction.
Reversed and remanded for a new trial on the charge of driving under the influence in case number 92-17084; sentence vacated in case number 92-31026 and remanded for re-sentencing.
. Defendant did not appeal his conviction for driving with a suspended license; the severance issue is therefore moot. The inadvertent admission of defendant's statement relating to a prior sentence of imprisonment is not likely to recur on retrial.
. Defendant’s appeal of his conviction for DUI relates to the charges in case number 92-17084. When he was sentenced in case number 92-17084, he entered a plea of nolo contendere to charges filed in case number 92-31026 and was then sentenced in both cases.
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Cited By
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Maloy v. State, 937 So. 2d 311 (Fla. 4th DCA 2006)…Carratelli v. State, 832 So. 2d 850, 856 (Fla. 4th DCA 2002) (stating that “[a] plethora of Florida cases support the notion that a party must obtain a ruling from the trial court in order to preserve an issue for appellate review”); Marin v. State, 624 So. 2d 808 (Fla. 3d DCA 1993) (concerning a defendant’s right to open and close final argument). We also reject appellant’s claim on direct appeal that trial counsel provided him with ineffective assistance of counsel. See Dennis v. State, 696 So. 2d 1280 (Fla…
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Nase v. State, 746 So. 2d 469 (Fla. 2d DCA 1997)…e, 626 So. 2d 1006 (Fla. 2d DCA 1993). Moreover, section 948.03(6), Florida Statutes (1995), provides that a court may not impose more than 364 days of incarceration as a special condition of probation. See Randolph, 626 So. 2d 1006; Marin v. State, 624 So. 2d 808 (Fla. 3d DCA 1993). Accordingly, we affirm appellant’s conviction, reverse his sentence, and remand for resentencing. PARKER, C.J., and THREADGILL, J., concur.…
Authorities Cited
- Birge v. State, 92 So. 2d 819 (Fla. 1957)
- Smith v. State, 574 So. 2d 1195 (Fla. 3d DCA 1991)
- Brunetti v. State, 594 So. 2d 291 (Fla. 1992)
- Pettit v. State, 612 So. 2d 1381 (Fla. 2d DCA 1992)
- Myron Morales v. State, 609 So. 2d 765 (Fla. 3d DCA 1992)