Mayberry v. State

430 So.2d 908 (1982)

Gary F. MAYBERRY, Appellant,
v.
The STATE of Florida, Appellee.

No. 81-1867.

District Court of Appeal of Florida, Third District.

December 14, 1982.

Bennett H. Brummer, Public Defender and Sara Bresky Blumberg, Sp. Asst. Public Defender, for appellant.

Jim Smith, Atty. Gen. and Jack Ludin, Asst. Atty. Gen., for appellee.

Before HUBBART, C.J., and BASKIN and FERGUSON, JJ.

PER CURIAM.

The defendant Gary F. Mayberry appeals his conviction for second degree murder and aggravated child abuse. He contends that it was reversible error for the trial court (a) to allow evidence of prior bad acts in which it was shown that the defendant abused his deceased son on two occasions approximately three months prior to the son's murder by child abuse, and (b) to deny a motion for severance of counts as the defendant was prejudiced in presenting an insanity defense. We reject both contentions and affirm the adjudications and sentences under review.

First, we are persuaded that evidence of the prior bad acts below was admissible as relevant to establish criminal intent, motive, common scheme and absence of mistake. Wooten v. State, 398 So.2d 963 (Fla. 1st DCA), pet. for rev. dism., 407 So.2d 1107 (Fla. 1981). Second, there is no showing in this record that the failure to sever the two counts charged created, as urged, a legal or factual impediment to the proper presentation of the defendant's insanity defense on the murder charge; moreover, the subject offenses were clearly joinable. Jacobs v. State, 396 So.2d 713, 717 (Fla. 1981).

Affirmed.