Case No. TT01-001080-XX
Appeal No.: DD-0050
JENNIFER JILL JOHNSON,
Appellant,
vs.
STATE OF FLORIDA,
Appellee.
_______________________
OPINION OF THE COURT
This is an appeal from the county court of Polk County, Judge Ellen Masters presiding. The appellant, Jennifer Jill Johnson, was convicted by a jury of driving under the influence. Appellant seeks review of the judgment and sentence. This court has jurisdiction. Fla. R. App. P. 9.030(c). The ruling of the trial court is AFFIRMED.
I.Appellant was charged by two informations filed by the State Attorney for the Tenth Judicial Circuit, both of which allegedly occurred on February 24, 2001. In case number TT01-001080-XX, the appellant was charged with driving under the influence, a first degree misdemeanor. In case number TT01-001081-XX the appellant was charged with driving while license suspended or revoked, with previous convictions on September 30, 1990 and January 19, 1995, also a first degree misdemeanor. Jury selection took place on April 23, 2001. On April 26, 2001, the second day of trial, the trial court granted the defense's motion in limine. The appellant waived her right to a jury trial as to the charge of driving while license suspended or revoked, in order to avoid mention of her prior record or the fact of the suspended driver's license during the trial.
At trial, the following exchange took place during the prosecutor's direct examination of the arresting officer, Deputy Borum;Prosecutor: AWhat happened once she provided you with an ID card? What did you do next?
Deputy Borum: AWell, I asked her if her license was suspended because typically when you don=t have a driver's license, if you have an ID card
(V1/TB 30) The defense immediately interrupted and asked for a sidebar conference. (V1/TB30-31) The defense objected and moved for mistrial arguing that the officer was testifying to the appellant's traffic history. The prosecutor disagreed and argued that the officer was testifiying to what he asked her. The trial judge stated, AOkay. He just communicated to this jury that, in fact, her license was suspended, did he not? (V1/TB 31) In order to ascertain exactly what the deputy had said, the trial judge took a recess and had the record played back. The court agreed that the deputy's statement went to the same issue that the motion in limine was to prevent; that the appellant's license was suspended. After the prosecutor proffered what the deputy was going to say right after that statement, the court went on to say A[q]uite frankly, at this point I think I=m going to have to grant this motion for mistrial. But I want to spend a few more minutes doing some mental gymnastics and see if there's any way I can save this. . . (V1/TB 36) A short recess was held. After the recess the trial judge returned and advised that she would deny the motion for mistrial and provide a curative instruction to the jury.
At the conclusion of the jury trial, regarding the charge of driving under the influence, the defense made a motion for judgment of acquittal, which the trial court denied. (V2/TB 81) After argument by counsel and jury instructions from the court, the jury retired. Thereafter, the trial court heard testimony regarding the charge of driving while license suspended or revoked. (V2/TB 104-111) The trial court heard and denied a motion for judgment of acquittal and found appellant guilty. (B2/111-112) The jury returned a verdict of guilty as to the charge of driving under the influence. (V1/R9; V2/TB113) The appellant was sentenced to 365 days incarceration on each case, with the sentences to run consecutively to each other and to any other sentence being served. (V2/TB118-119; V1/R10-11) The court also imposed fines and costs totaling $3156.00. Appellant filed a timely notice of appeal.
The appellant argues that a new trial is required because the trial court erred in denying a motion for mistrial, when the arresting officer violated the trial court's ruling on the motion in limine by referring to the suspension of appellant's driver's license while testifying before the jury regarding the charge of driving under the influence.
II.
The Florida Supreme Court has held that Aa motion for mistrial `should be granted only when it is necessary to ensure that the defendant receives a fair trial. State v. Goodwin, 751 So.2d 537, 546 (Fla. 1999) (citing Cole v. State, 701 So.2d 845, 853 (Fla. 1997). The court, sitting in its appellate capacity must apply the abuse of discretion standard Ato determine whether the single improper remark, to which the trial court sustained an objection and gave a curative instruction, was so prejudicial as to deny appellant a fair trial.@ Goodwin, 751 So.2d at 547.
Having reviewed the record in this case, it can not be said that the trial court abused its discretion. In making its decision to provide a curative instruction instead of granting the mistrial, the trial court relied on the fact that during jury selection, which took place Monday, April 23rd, (three days earlier), the informations were read to the potential jurors. (V1/TA10) That is, the jury had already been instructed regarding the appellant's pending charges of driving while license suspended or revoked (DWLSR) as well as the pending charge of driving under the influence (DUI). (V1/TA8-11) Upon the jury's return to the court room, the court provided the following curative instruction:
A. .. I am going to direct you to disregard the last statement that you heard from the witness. It has been stricken. It has nothing to do with this case, for your consideration, . ..
(V1/TB39) This court finds that under the facts of this case, the single improper remark was not so prejudicial as to deny appellant a fair trial. Goodwin, 75 So.2d at 547.
Accordingly, it is ORDERED that the ruling of the trial court is AFFIRMED.
ORDERED January 2002.
Charles B. Curry, Chief Judge