Montalvo v. State

District Court of Appeal of Florida

Montalvo v. State

154 So. 2d 713, 1963 Fla. App. LEXIS 3325

CourtDistrict Court of Appeal of Florida

DecidedJune 25, 1963

DocketNo. 62-426

StatusPublished

Cited by5 cases

This text of 154 So. 2d 713 (Montalvo v. State) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Montalvo v. State, 154 So. 2d 713, 1963 Fla. App. LEXIS 3325 (Fla. Ct. App. 1963).

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Opinion

PER CURIAM.

The appellant, by this appeal, is' seeking reversal of a judgment and sentence- to two> [714]*714years in the State penitentiary for larceny of an automobile.

To obtain a reversal of his non-jury conviction, the appellant relies upon the following points: 1) The trial court erred in admitting into evidence testimony of other unrelated offenses allegedly committed by the appellant and, 2) The trial court erred in admitting the admissions of a co-defendant into evidence.

A review of the record discloses that the appellant failed to make a timely objection to the admission of the evidence referred to in his first point on appeal. It is well settled that where no objection is made to the admission of evidence during trial the question cannot be considered by the appellate court. See: English v. State, 122 Fla. 77, 164 So. 848; Chaudoin v. State, Fla.App.1960, 118 So.2d 569. We find the appellant’s second point also to be without merit. The trial court, as reflected by the record, when confronted with the testimony relating to the confession of the accomplice at the first hearing in the cause, recognized the testimony was hearsay and continued the cause until the accomplice could be brought in to testify. Therefore, it is apparent the judge didn’t rely on the readmission of that testimony at the second hearing. Even assuming that the trial court did rely on the testimony complained of, said evidence would constitute harmless error in view of the testimony of the accomplice covering the same matters. Thus, it is entirely proper, in the instant case, to apply the provisions of § 924.33 Fla.Stat.,¹ and we therefore affirm the judgment and sentence of the lower court. See: Martin v. State, 100 Fla. 16, 129 So. 112; Haddock v. State, 141 Fla. 132, 192 So. 802; Albano v. State, Fla. 1956, 89 So.2d 342.

Affirmed.

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PER CURIAM.

The appellant, by this appeal, is' seeking reversal of a judgment and sentence- to two> [714]*714years in the State penitentiary for larceny of an automobile.

To obtain a reversal of his non-jury conviction, the appellant relies upon the following points: 1) The trial court erred in admitting into evidence testimony of other unrelated offenses allegedly committed by the appellant and, 2) The trial court erred in admitting the admissions of a co-defendant into evidence.

A review of the record discloses that the appellant failed to make a timely objection to the admission of the evidence referred to in his first point on appeal. It is well settled that where no objection is made to the admission of evidence during trial the question cannot be considered by the appellate court. See: English v. State, 122 Fla. 77, 164 So. 848; Chaudoin v. State, Fla.App.1960, 118 So.2d 569. We find the appellant’s second point also to be without merit. The trial court, as reflected by the record, when confronted with the testimony relating to the confession of the accomplice at the first hearing in the cause, recognized the testimony was hearsay and continued the cause until the accomplice could be brought in to testify. Therefore, it is apparent the judge didn’t rely on the readmission of that testimony at the second hearing. Even assuming that the trial court did rely on the testimony complained of, said evidence would constitute harmless error in view of the testimony of the accomplice covering the same matters. Thus, it is entirely proper, in the instant case, to apply the provisions of § 924.33 Fla.Stat.,¹ and we therefore affirm the judgment and sentence of the lower court. See: Martin v. State, 100 Fla. 16, 129 So. 112; Haddock v. State, 141 Fla. 132, 192 So. 802; Albano v. State, Fla. 1956, 89 So.2d 342.

Affirmed.

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154 So. 2d 713, 1963 Fla. App. LEXIS 3325, Counsel Stack Legal Research, https://law.counselstack.com/opinion/montalvo-v-state-fladistctapp-1963.

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