Opinion
No. 78-1351.
December 16, 1980.
Appeal from the Circuit Court, Dade County, Richard S. Fuller, J.
Bennett H. Brummer, Public Defender and Bruce A. Rosenthal, Asst. Public Defender, for appellant.
Jim Smith, Atty. Gen. and Calianne P. Lantz, Asst. Atty. Gen., for appellee.
Before HUBBART, C.J., NESBITT, J., and MELVIN, WOODROW M. (Ret.), Associate Judge.
The final judgment of conviction and sentence under review is affirmed upon a holding that the testimony and prosecutorial argument complained of on appeal were not so prejudicial as to call for a mistrial, as urged, rather than a cautionary jury instruction [specifically declined by appellant in the trial court] because: (a) the track mark testimony was at worst an oblique and extremely vague attack on appellant's character which could have been cured, in our view, by a cautionary instruction; and (b) the alleged attempted drug sale testimony and argument was at worst a disjointed and rather confusing effort to suggest appellant's involvement in another crime which, in our view, could have also been cured by a cautionary instruction. Rivers v. State, 226 So.2d 337 (Fla. 1969); Perry v. State, 146 Fla. 187, 200 So. 525 (1941); Flowers v. State, 351 So.2d 764 (Fla. 3d DCA 1977); Rhome v. State, 222 So.2d 431 (Fla. 3d DCA 1969).
Affirmed.