5D12-711 Mark Benoit v. State

State: Florida

Court: Florida Fifth District Court

Docket No: 5D12-711

Case Date: 01/21/2013

Preview:IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT JANUARY TERM 2013 NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED MARK BENOIT, Appellant, v. STATE OF FLORIDA, Appellee. ________________________________/ Decision filed January 25, 2013 Appeal from the Circuit Court for Volusia County, Randell H. Rowe, III, Judge. James S. Purdy, Public Defender, and David S. Morgan, Assistant Public Defender, Daytona Beach, for Appellant. Pamela Jo Bondi, Attorney General, Tallahassee, and Carmen F. Corrente, Assistant Attorney General, Daytona Beach, for Appellee. Case No. 5D12-711

PER CURIAM.

AFFIRMED.

TORPY and EVANDER, JJ., concur. ORFINGER, C.J., concurring specially with opinion.

ORFINGER, C.J., concurring specially with opinion.

5D12-711

I concur with the decision to affirm Mr. Benoit's convictions. While the State clearly, in my view, violated the court's order in limine, it was within the trial court's discretion to deny the motion for mistrial. In her opening statement, the prosecutor referred to matters that the trial court previously ruled were inadmissible. Then, when the mistrial motion was made, the prosecutor claimed that she did not violate the order in limine, arguing that her opening statement was not evidence and the order only precluded the matters referred to from being introduced into evidence. That explanation is disingenuous at best and fails even the "straight face" test. The prosecutor should have been sanctioned for what was a blatant violation of the court's order. The State should demand better from its assistant state attorneys.

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