Pugh v. State

OPINION OF THE COURT

GARY L. FORMET, SR., Circuit Judge.

The Court having reviewed the record on appeal and briefs of counsel, dispenses with oral argument herein pursuant to Fla.R.App.P. 9.320 and finds as follows.

The first issue raised by the Appellant alleges an improper statement by the State Attorney in closing argument. It does not appear from the record that a motion for mistrial was made as alleged, only that an objection was lodged and there is no indication as to the court’s ruling on that objection. The statement by the prosecutor does not constitute fundamental constitutional error, and therefore the failure of the defense attorney to properly preserve the issue for appeal waives the Defendant’s right.

Had the issue been properly preserved for appeal, the comment at best would have been harmless error, and the curative instruction given by the court was sufficient to alleviate any prejudice.

As to the second issue on appeal, the Appellant alleges the court erred in sentencing the Defendant as a subsequent offender since one of the prior convictions is an uncounseled conviction. There is nothing in the record to indicate an objection to the sentencing, nor as the Appellant come forth with any evidence that the prior DUI conviction was uncounseled . The Appellant has the initial burden of establishing this claim which has not been met. Allen v State, 463 So.2d 35 (Fla. 1st DCA 1985)

Therefore the judgment and sentence of the lower court is AFFIRMED.

Motions for re-hearing will not be entertained. The Clerk is directed to issue its mandate forthwith.

DONE AND ORDERED in chambers at the Orange County courthouse, Orlando, Florida, this 31st day of October, 1990.