Farrington v. StateFarrington v. State
The appellant was found guilty after a non-jury triаl of (1) violation of
Appellant has presented three points. The first urges that the trial court committed reversible error when he proceeded immediately from a hearing on a motion to suppress evidence to an adjudication of guilt without allowing the appellant time
Appellant makes his main argument under Point I. He urges that he wаs deprived of a substantive right because the court announced its ruling upon the motion to suppress and then adjudicatеd the appellant guilty without hearing additional evidence. He argues that he was deprived of the right to offer additional evidence and to argue his case. The minutes of the trial court reveal that the court consolidated the heаring on the motion to suppress the evidence with the trial in chief. The transcript of the testimony taken at the trial does not refer to this ruling. In his argument before this court, appellant urges that as a matter of fact no such ruling was made.
It is established thаt in order to be entitled to a reversal, it is incumbent upon the appellant to present a record showing a basis for reversal. Faulkner v. State, 146 Fla. 769, 1 So.2d 857 (1941); Belfield v. Lochner, Fla.App. 1964, 162 So.2d 668. If there are errors or omissions in the record, or the record does not speak the truth, the burden is upon thе appellant to apply to the trial judge for the correction of the record. See Singelton v. State, Fla.App. 1966, 183 So.2d 245. We therefore hоld that we must accept the record, including the minutes of the court, which is the record proper, as speaking the truth рertaining to the occurrences at the trial.
The appellant does not urge that he was surprised or forced tо a trial before he was prepared. He urges only that precipitous action of the trial judge in announcing his deсision may have deprived him of the right to argue his case. In this connection the record shows that counsel for appellant voiced no objection to the procedure employed. The position of the State is that appellant‘s claim that he was prejudiced is strictly an afterthought. This position is supported by the fact that the record before us shows that appellant originally retained his trial counsel to prosecute the appeal. A motion for new trial was filed but trial counsel did not raise the ground that he was precluded from offering evidence or that he was denied the right to argue the case, nor did he include these grounds in his assignment of errors first filed. It was only when new appellate counsеl was substituted that these points were raised by the filing of additional assignments of errors with the permission of this court.
The Supreme Court of Florida in State v. Jones, Fla.1967, 204 So.2d 515, 517 has recently had occasion to deal with a similar situation. In that case appellant‘s counsel did not object to what may have been a prejudicial statement by the State Attorney in his argument to the jury. In that case the court held:
“Such procedure is unmindful that an important function of an attorney in a trial is to assist the court. It is the judge‘s responsibility to supervise the trial. If counsеl performs his duty and promptly calls attention to remarks of the prosecutor which he considers prejudicial the court can excuse the jury, hear from both sides and forthwith take appropriate action if the remark in fact is found tо be improper. See Rogers v. State, 158 Fla. 582, 790, 30 So.2d 625.”
The court concluded by stating:
“It has been suggested that some courts today seem to be preoccupied primarily in сarefully assuring that the criminal has all his rights while at the same time giving little concern to the victim. Upon the shoulders of our courts rests the obligation to recognize and maintain a middleground which will secure to the defendant on trial the rights afforded
him by law without sаcrificing protection of society. As Mr. Justice Cardozo explained in Snyder v. Commonwealth of Mass., 291 U.S. 97, 122, 54 S.Ct. 330, 338, 78 L.Ed. 674, 687: `But justice, though due to thе accused is due to the accuser also. The concept of fairness must not be strained till it is narrowed to a filamеnt. We are to keep the balance true.’
“The Court now recants the statement of the exception upon whiсh respondent relies and henceforth will review challenged argument of prosecutors only when an objection is timely made.”
We think that the reasoning of the Supreme Court, as applied to improper argument of prosecutors, is applicable to the situation now before us. Counsel for appellant may not stand idly by and fail to even comment uрon a procedure which he now argues is prejudicial. See Hall v. State, 119 Fla. 38, 160 So. 511 (1935); Willoughby v. State, Fla.App. 1967, 203 So.2d 10. We therefore hold that appellant has not shоwn reversible error upon his first point.
Appellant‘s second point, which goes to the validity of the search, is without merit because the record shows that the officers were lawfully on the premises at the time of the search and that the lottery tickets were in open view. The appellant was arrested for the possession of the lottery tickets prior to the search which revealed additional lottery paraphernalia. See Boynton v. State, Fla. 1953, 64 So.2d 536; Joyner v. City of Lakeland, Fla. 1956, 90 So.2d 118; see also Hutchinson v. State, Fla.App. 1967, 201 So.2d 485.
Appellant‘s third point which urges that thе evidence is insufficient is likewise without merit. See Lopez v. State, Fla. 1953, 66 So.2d 807.
The appeal from the conviction upon Count I is affirmed and this appeal is transferred to the circuit court for disposition of the appeal from the conviction on Count II.
Affirmed and transferred to the circuit court.