Scott v. State

396 So. 2d 271 (1981)

James Randolph SCOTT, Appellant,
v.
The STATE of Florida, Appellee.

No. 79-1580.

District Court of Appeal of Florida, Third District.

April 7, 1981.

Bennett H. Brummer, Public Defender and Lance R. Stelzer, Sp. Asst. Public Defender, for appellant.

Jim Smith, Atty. Gen. and Steven R. Jacob, Asst. Atty. Gen., for appellee.

Before DANIEL S. PEARSON and FERGUSON, JJ., and PEARSON, TILLMAN (Ret.), Associate Judge.

PER CURIAM.

The judgment of conviction is affirmed upon a holding that (1) any impropriety in two isolated comments made by the trial judge during the jury selection process was not preserved for appellate review by a proper and timely objection, motion for mistrial, or request for corrective instruction, Foreman v. State, 47 So. 2d 308 (Fla. 1958); Pegues v. State, 361 So. 2d 433 (Fla.1st DCA 1978); Flynn v. State, 351 So. 2d 377 (Fla.4th DCA 1977); McCrea v. State, 210 So. 2d 724 (Fla.3d DCA 1968); see also Mack v. State, 270 So. 2d 382 (Fla.3d DCA 1972), and the comments were not so pernicious as to cause us to recognize them as fundamental error; (2) the refusal of the trial court to give a specified requested instruction is harmless when the instructions as a whole clearly and adequately enabled the jury to consider the theory of the defense, Creamer v. State, 205 So. 2d 356 (Fla.2d DCA 1967); Darty v. State, 161 So. 2d 864 (Fla.2d DCA 1964).

Affirmed.