FARRELL D. FUGETT AND SUZANNE GUTHRIE, APPELLANTS,
v.
STATE OF FLORIDA, APPELLEE
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In this double jeopardy case, appellants were charged with robbery, and during trial their motion for mistrial was initially denied when the prosecutor improperly mentioned why a defense witness could not testify. However, the trial judge later declared a mistrial on the State's motion without rescinding the earlier denial. The appellate court reversed, finding the trial court erred in denying the mistrial motion and later rejecting the double jeopardy defense on retrial.
The trial court erred in denying appellants' motion to dismiss on grounds of prior jeopardy when the case was reset for trial. The appellants did not waive their double jeopardy protection because the judge never rescinded his initial denial of their mistrial motion, and therefore they could not be deemed to have joined in the State's later motion for mistrial.
[1] A prosecutor's comment on a witness's failure to testify, when the witness was declared incompetent and not permitted to testify, is improper argument.
[2] A trial court's curative instruction to the jury may remedy an improper prosecutorial comment.
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“the judge, by his action, clearly denied the defense motion for mistrial”
Establishes that the trial judge explicitly rejected the initial mistrial motion
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Join FLexlaw to unlock all legal intelligenceAppellants Fugett and Guthrie were charged with robbery. During trial, the prosecutor mentioned in closing argument that Guthrie's mother had not test…
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The State charged the appellants with robbery. During their trial it was discovered that the mother of appellant Guthrie had been adjudicated incompetent and she was not permitted to testify. In his closing argument, the prosecutor mentioned the fact that the mother had not testified and defense counsel moved for a mistrial.
“MR. FARNELL [Attorney for Defendant Guthrie] : That is highly improper comment, and I believe we’d be entitled to a mistrial, Judge. I think that was flagrant. He knows full well why we couldn’t put her on.
MR. MYERS [Attorney for Defendant Fugett]: There’s no way we can explain that away, now that it’s brought before the jury. We can’t explain to them the reason she could not testify was because she was incompetent. And I would join counsel in moving for a mistrial.
THE COURT: I think it can be cured by an instruction to the jury.”
The judge then gave the following instruction to the jury to cure the improper comment.
“THE COURT: Ladies and gentlemen of the jury, this is improper argument on the part of the State’s Attorney. The testimony was that the father was inside the store, the mother was in the car. The mother was offered as a witness in this case. She had been declared incompetent by a Court. She is still incompetent. The Court would not allow her to testify, in view of her incompetence.”
It therefore appears that the judge, by his action, clearly denied the defense motion for mistrial.
As soon as the charge was given, the State moved for a mistrial. The judge then said that both parties had moved for mistrial, declared a mistrial, and discharged the jury. However, the judge had denied the defense motion for mistrial and by his language did not rescind that denial. Therefore, it cannot be said that the defense joined in the State’s motion thereby waiving double jeopardy. State ex rel. *30Manning v. Himes, 1943, 153 Fla. 711, 15 So.2d 613; State ex rel. Williams v. Grayson, Fla. 1956, 90 So.2d 710, 63 A.L.R.2d 777.
Thus, the trial court erred in denying appellants’ motion to dismiss on grounds of prior jeopardy when the case was reset for trial and in entering judgment and imposing sentence upon their plea of nolo con-tendere.
Reversed and remanded with directions to vacate sentences and discharge appellants.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Leone Berdina Rosacker v. Rosacker, 90 So. 2d 710 (Fla. 1956)
- Cockery v. Ashkenazy, 90 So. 2d 710 (Fla. 1956)
- State v. Himes, 153 Fla. 711 (Fla. 1943)