ARTHUR HERBERT PORTER, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Arthur Herbert Porter was convicted of attempted robbery of a service station attendant and sentenced to four years imprisonment. On appeal, Porter challenged the conviction on multiple grounds, including that the trial court erred in submitting the case to the jury and in instructing the jury on attempted robbery when only robbery was charged. The appellate court affirmed the conviction, finding no reversible error.
The court held that no reversible error occurred. The case was properly submitted to the jury; the alleged improprieties were either not improper or not constituting reversible error; and Porter had no standing to object to the attempted robbery instruction on appeal because he failed to object at trial and actually requested the instruction himself. Furthermore, courts are mandatorily required to instruct on lesser included offenses.
[1] A trial court does not err in submitting a case to the jury when the record discloses no error in doing so.
[2] Alleged improprieties in a trial, even if taken together, do not constitute reversible error if the remaining alleged errors do not rise to that level.
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Join FLexlaw to unlock all legal intelligence“Appellant concedes he is constitutionally entitled to a fair trial, not a perfect one.”
Establishes the standard for appellate review of trial court proceedings—fairness is required, not perfection
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Join FLexlaw to unlock all legal intelligencePorter was tried before a jury on an information charging him with robbery of a service station attendant. The jury convicted him of attempted robbery…
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PER CURIAM.
Appellant was convicted in the trial court of the crime of attempted robbery of a service station attendant and sentenced to four years in the state penitentiary.
The trial was held before a jury upon an information filed by the state charging the appellant with robbery.
As his first point on appeal, the appellant contends that the trial court should have granted him a judgment of acquittal. Our review of record discloses no error in submitting this case to the jury for a determination of the appellant’s guilt or innocence.
Next, appellant enumerates a series of seven “improprieties” which he contends if taken together served to deny him a fair trial.
In our view, several of these alleged improprieties (i. e., an alleged tainted in-court identification and the alleged admission of hearsay testimony) were not at all improper. And, the remaining errors allegedly committed in no way constituted reversible error. Appellant concedes he is constitutionally entitled to a fair trial, not a perfect one. See, Simpson v. State, Fla.App. 1968, 211 So. 2d 862, 867. The record before us demonstrates that both the trial judge and the prosecuting and defense attorneys conscientiously endeavored to insure that the appellant received a fair trial.
Lastly, appellant contends that he was deprived of due process of law because the court instructed the jury with respect to attempted robbery (the crime for which the jury ultimately found the appellant guilty), when the information only charged him with robbery.
However, the record clearly demonstrates that the appellant does not have standing to object in the appellate court to the instruction.
Not only did the appellant fail to object in the trial court to the charge of attempted robbery, he requested the court to give the instruction. See, Williams v. State, Fla.1973, 285 So. 2d 13; Clements v. State, Fla.App. 1973, 284 So. 2d 700; Bradley v. State, Fla.App. 1974, 296 So. 2d 595.
Also, even if the appellant had not requested the instruction, the court is mandatorily required to instruct the jury with respect to an attempted offense. See, CrPR 3.510 (F.S.A., 1973 Revision); Rayner v. State, Fla.1973, 273 So. 2d 759; Henry v. State, Fla.App.1973, 277 So. 2d 78.
Therefore, for the reasons stated and upon the authorities cited, the judgment and sentence appealed are affirmed.
Affirmed.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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House v. State, 344 So. 2d 623 (Fla. 3d DCA 1977)…ssarily included in the offense charged. The court shall charge the jury in this regard. See State v. Terry, 336 So. 2d 65 (Fla.1976); Brown v. State, 206 So. 2d 377 (Fla.1963); Lightfoot v. State, 331 So. 2d 388 (Fla.2d DCA 1976); Porter v. State, 301 So. 2d 808 (Fla.3d DCA 1974); Hood v. State, 287 So. 2d 110 (Fla.4th DCA 1973); Miles v. State, 258 So. 2d 333 (Fla.3d DCA 1972). Reversed and remanded for new trial.…
Authorities Cited
- Williams v. State, 285 So. 2d 13 (Fla. 1973)
- Simpson v. State, 211 So. 2d 862 (Fla. 3d DCA 1968)
- Rayner v. State, 273 So. 2d 759 (Fla. 1973)
- Henry v. State, 277 So. 2d 78 (Fla. 2d DCA 1973)
- Clements v. State, 284 So. 2d 700 (Fla. 3d DCA 1973)
- Lawrence v. Hethcox, 284 So. 2d 700 (Fla. 3d DCA 1973)
- Bradley v. State, 296 So. 2d 595 (Fla. 3d DCA 1974)