Vedder v. State

District Court of Appeal of Florida

Vedder v. State

313 So. 2d 49, 1975 Fla. App. LEXIS 14854

District Court of Appeal of Florida·Decided May 20, 1975·No. No. 74-1459·Published

Opinion

PER CURIAM.

The appellant was found guilty by a jury of (1) delivering a controlled substance to a minor child under 18 years of age and (2) possession of a controlled substance. He was sentenced to ten years imprisonment on count 1 and to imprisonment by confinement at hard labor for a term of one year on count 2, the sentences to run concurrently. The only substantial question presented on this appeal is “whether the trial court erred in denying defendant’s motion for a mistrial and his motion for a new trial where the prosecutor improperly cross-examined the defendant and made inflammatory remarks to the jury.”

Our review of the record shows that the remarks, while improper, were not such as to deprive the appellant of a fair trial. An accused is entitled to a fair trial, not a perfect one. Lutwak v. U. S., 344 U.S. 604, 73 S.Ct. 481, 97 L.Ed. 593 (1953), and Simpson v. State, Fla.App.1968, 211 So.2d 862. In the present instance, the proof of guilt is direct, clear and overwhelming. We, therefore, hold that no prejudicial error is shown. See Fla.St. § 924.33 and Brantley v. State, Fla. 1973, 279 So.2d 290.

Affirmed.

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PER CURIAM.

The appellant was found guilty by a jury of (1) delivering a controlled substance to a minor child under 18 years of age and (2) possession of a controlled substance. He was sentenced to ten years imprisonment on count 1 and to imprisonment by confinement at hard labor for a term of one year on count 2, the sentences to run concurrently. The only substantial question presented on this appeal is “whether the trial court erred in denying defendant’s motion for a mistrial and his motion for a new trial where the prosecutor improperly cross-examined the defendant and made inflammatory remarks to the jury.”

Our review of the record shows that the remarks, while improper, were not such as to deprive the appellant of a fair trial. An accused is entitled to a fair trial, not a perfect one. Lutwak v. U. S., 344 U.S. 604, 73 S.Ct. 481, 97 L.Ed. 593 (1953), and Simpson v. State, Fla.App.1968, 211 So.2d 862. In the present instance, the proof of guilt is direct, clear and overwhelming. We, therefore, hold that no prejudicial error is shown. See Fla.St. § 924.33 and Brantley v. State, Fla. 1973, 279 So.2d 290.

Affirmed.

Vedder v. State, 313 So. 2d 49, 1975 Fla. App. LEXIS 14854 (Fla. Ct. App. 1975).

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