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354 So. 2d 477

Smith v. State

District Court of Appeal of Florida

Decided January 31, 1978

District Court of Appeal of Florida · decided 1978-01-31

Key passage — most relied on by later courts

“(1) so as to deprive appellant of a fair and impartial trial; (2) materially contribute to his conviction; (3) be so harmful or fundamentally tainted so as to require a new trial; or (4) be so inflammatory that they might have influenced the jury to reach a more severe verdict than that which they would have reached otherwise.”

quoted by 2 later decisions, including 406 So. 2d 1103 - Blair v. State, 555 So. 2d 1298 - Lopez v. State

Relies on Speller v. State · Metropolitan Dade County v. Dade County Employees, Local 1363

Good law ✅— No negative treatment on recordhow we know

Decided 1978-01-31

How this case has been cited

Cited by 3 later decisions — most recently January 1990

3 state decisions

10197819801990decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

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PER CURIAM.

¶1Appellant was found guilty of unlawful possession of burglary tools, attempted trespass and attempted petit larceny. He was adjudged guilty and sentenced to a term of three years at hard labor in the state penitentiary as to the possession of burglary tools count. Sentences were withheld as to the two other counts.

¶2Appellant seeks reversal of his convictions on the ground that the trial court erred in failing to grant his motion for new trial based upon the grounds that the prosecuting attorney made improper remarks in his closing argument to the jury that deprived appellant of a fair and impartial trial.

¶3We have carefully considered the record, briefs and arguments of counsel and have concluded that the remarks of the prosecutor were not so harmful or fundamentally tainted so as to require a new trial. No reversible error having been shown, the convictions must be affirmed. Olivia v. State, 346 So.2d 1066 (Fla. 3d DCA 1977).

¶4Appellant has also questioned the legality of the sentence insofar as it provides that the appellant is to serve his term in the penitentiary at “hard labor.” We agree that the trial court erred in specifying that appellant serve his sentence at “hard labor” for there is no longer statutory authority for the “hard labor” provisions of the sentence. Accordingly, the words “hard labor” are hereby stricken and the sentence is affirmed as amended. Speller v. State, 305 So.2d 231 (Fla. 2d DCA 1974).

¶5Affirmed as amended.

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