MAURICIO RODRIGUEZ AND FELIPE NAVARRO, APPELLANTS,
v.
THE STATE OF FLORIDA, APPELLEE
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The court held that the trial judge did not abuse discretion in denying severance, that prejudicial witness comments were invited by the defense, and that admitting evidence after the State rested was not harmful error.
[1] A trial judge has discretion to grant a severance, and an appellant must demonstrate an abuse of that discretion to establish error.
[2] Prejudicial statements by a prosecution witness do not constitute error if they were invited by the defense's cross-examination questions.
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Join FLexlaw to unlock all legal intelligenceDefendants were convicted of a crime and appealed, raising issues regarding severance, prejudicial witness comments, and the admission of evidence. Th…
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By this criminal appeal, the defendants raise several questions relating to: (1) The failure of the trial judge to grant a severance upon a pre-trial motion; (2) The failure to grant a mistrial because of alleged prejudicial comments by the State’s witness; and (3) Alleged irregularity in the admission of certain evidence which had been previously identified. We affirm.
It is within the discretion of a trial judge to grant a severance and it is incumbent upon an appellant, when urging error on this ground, to demonstrate an abuse of this discretion. Jackman v. State, Fla.App.1962, 140 So.2d 627; Byrd v. State, Fla.App.1968, 206 So.2d 430. This record fails to reveal any abuse of discretion by the trial judge at the time of the pre-trial motion for severance, which motion was not renewed during the progress of the trial.
Prejudicial statements, which were stricken by the trial judge, from the prosecution’s witness were invited by questions from counsel 'for the defendants on cross-examination. Therefore, no error has been made to appear in this regard. Gurr v. State, 150 Fla. 65, 7 So.2d 590; Williams v. State, Fla.1953, 69 So.2d 766; Tribue v. State, Fla.App. 1958, 106 So.2d 630.
During the course of the trial, certain tangible evidence was identified. Immediately upon the State resting its case, it moved that the exhibits previously identified be marked in evidence. This was done in the presence of the jury. No objection as to the admissibility was made as to the irregularity in the time sequence for introduction and, although it may have been a technical error to mark them at this time in evidence, it was done in front of the jury after the evidence had been previously identified before the jury. Therefore, we do not find this to be harmful error. Simpson v. State, Fla.App.1968, 211 So.2d 862; Scarpati v. State, Fla.App.1969, 224 So.2d 335; § 924.33, Fla.Stat., F.S.A.
Therefore, for the reasons above stated, the jury verdicts, judgments of conviction, and sentences thereon be and the same are hereby affirmed.
Affirmed.
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Citator
Cited By
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Hanks v. State, 305 So. 2d 817 (Fla. 3d DCA 1974)…fendants have the burden of demonstrating a palpable abuse of discretion by the trial judge in failing to grant a severance. State v. Talavera, Fla.1971, 243 So. 2d 595; Grech v. State, Fla.App.1971, 243 So. 2d 216; Rodriguez v. State, Fla.App.1970, 237 So. 2d 772. In the instant case, appellants contend that they were entitled to a severance solely because they were thrown together in a single prosecution where allegedly there was a high probability of misidentification or a false identification. Our revie…
Authorities Cited
- Jackman v. State, 140 So. 2d 627 (Fla. 3d DCA 1962)
- Williams v. State, 69 So. 2d 766 (Fla. 1953)
- Macon Tribue v. State, 106 So. 2d 630 (Fla. 2d DCA 1958)
- Simpson v. State, 211 So. 2d 862 (Fla. 3d DCA 1968)
- Gurr v. State, 150 Fla. 65 (Fla. 1942)
- Scarpati v. State, 224 So. 2d 335 (Fla. 3d DCA 1969)
- Byrd v. State, 206 So. 2d 430 (Fla. 3d DCA 1968)