County Criminal Court: CRIMINAL PROCEDURE – post conviction relief – appellate court granted public defender’s motion to withdraw upon proper filing of an Anders brief – defendant’s failure to request a curative instruction or move for a mistrial after the court apparently sustained defendant’s objection, precluded a new trial – in conducting Anders review, court can find no other errors apparent on the face of the record – Order affirmed.  Harvey v. State, No. CRC 02-20523 APANO (Fla. 6th Cir. App. Ct. April 20, 2004).

 

 

IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT

IN AND FOR PINELLAS COUNTY, FLORIDA

APPELLATE DIVISION

 

DAVID ALLEN HARVEY,

                        Appellant,

 

vs.                                                                                            Appeal No. CRC 02-20523 APANO

                                                                                                 UCN522002CT20523XXXXXX

STATE OF FLORIDA

                        Appellee.

____________________________________/

 

Opinion filed ________________________

 

Appeal from Judgment of Guilt

Pinellas County Court

Judge Amy M. Williams

 

David Allen Harvey

Appellant, pro se

 

Summer Vecchioli, Esquire

Attorney for Appellee

 

 

ORDER AND OPINION

 

            THIS CAUSE came before the Court on appeal, filed by the defendant, David Allen Harvey (Harvey), from the Judgment of Guilt, entered November 12, 2002, upon being found guilty by jury verdict of the offense of DUI.  Upon review of the Initial [Anders] Brief, the record, and being otherwise fully advised, the Court affirms the Judgment as set forth below.

            Initially, the Court finds that Harvey has not filed his own brief as suggested by the Court in its Order Granting Public Defender’s Request to Withdraw and Order Granting Appellant Extension of Time to File Initial Brief, entered February 16, 2004.  The Public Defender was granted its Motion to Withdraw after filing an Initial [Anders] Brief, on December 1, 2003, pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and In Re Anders Briefs, 581 So.2d 149, 151 (Fla. 1991).  The Public Defender correctly followed the Anders procedure which provides that a motion to withdraw by appellate counsel, upon determining that an appeal is wholly frivolous, must be accompanied by a brief that refers to anything in the record that might arguably support an appeal.  See id.; see also Williams v. State, 852 So.2d 433, 434 (Fla. 5th DCA 2003).

            Accordingly, the only arguable issue presented is whether the trial court erred in denying Defense counsel’s motion for a new trial after a State witness, Officer Darren Chiaputti, testified he’d “looked over a past case that I had contact with him [Harvey]” in his preparation for trial.  After asking to approach the bench, the trial court suggested to Defense counsel that “you might want to talk about this with your client.”  After conferring with Harvey, Defense counsel stated that it was “not moving forward with a mistrial.”  Thereafter, the parties agreed to cure the error by directing Officer Chiaputti to answer only “yes” or “no” to whether his “prior involvements with Mr. Harvey have not [sic] been based on DUIs.”  Officer Chiaputti responded “no” and no further objections or motions were made with regard to this testimony.  Accordingly, the Court finds no error with the trial court’s decision not to declare a mistrial.  See e.g. State v. Benton, 662 So.2d 1364 (Fla. 3d DCA 1995)(holding that the defendant’s failure to request a curative instruction or move for a mistrial after the court apparently sustained the defendant’s objection, precluded a new trial).  Further, the Court can find no other errors apparent on the face of the record.  See Williams, 852 So.2d at 434.

            It is therefore,

            ORDERED AND ADJUDGED that the Judgment of Guilt is affirmed.

            DONE AND ORDERED in Chambers, at Clearwater, Pinellas County, Florida, this ______ day of April 2004.

           

                                                                                    ________________________________

                                                                                    DAVID A. DEMERS

                                                                                    Circuit Judge

 

                                                                                    ________________________________

                                                                                    ROBERT J. MORRIS, JR.

                                                                                    Circuit Judge

 

 

                                                                                    ________________________________

                                                                                    IRENE SULLIVAN

                                                                                    Circuit Judge

 

 

Copies furnished to:

 

Judge Amy M. Williams

 

David Allen Harvey

13250 72nd Terrace

Seminole, FL  33776

 

Haydee C. Oropesa, Assistant Public Defender

 

Summer Vecchioli, Assistant State Attorney