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Pedroza v. State12/15/2000
Appeal from the Circuit Court for Volusia County, Joseph G. Will, Judge.
The State of Florida, the appellee, instituted commitment proceedings against Pedro Salsedo Pedroza, the appellant, pursuant to the "Jimmy Ryce Act," hereinafter referred to as the Act. The Act establishes procedures for the involuntary civil commitment of sexually violent predators.
The commitment trial commenced with the State calling Pedroza as a witness. Pedroza had been convicted in 1981 of attempted sexual battery on a child under eleven years of age and aggravated assault. He received prison sentences of thirty and fifteen years respectively for those offenses. The evidence revealed that Pedroza discovered his victim, eight years old at the time, on the street outside an apartment complex. He approached her, grabbed her, and dragged her into a room in the apartment and, holding a knife to her throat, threatened to kill her if she screamed. He raped her and then stabbed her several times with the knife. Pedroza testified that he was under the influence of drugs and became angry when he could not penetrate the victim. He further testified that the little girl began to scream and he lost control of his emotions and started to stab her repeatedly with the knife.
At the conclusion of the commitment trial, the jury returned a verdict finding that Pedroza is a sexually violent predator. The trial judge, pursuant to the verdict, entered a final judgment of commitment, which committed Pedroza to the Department of Children and Families for confinement in a secure facility for control, care, and treatment until such time as Pedroza's mental abnormality or personality disorder has so changed that it is safe for him to be at large.
Pedroza appeals the final judgment of commitment and contends that reversal is warranted for the following reasons: 1) the Act is unconstitutional because it violates the due process, ex post facto, equal protection, and double jeopardy clauses of the federal and Florida constitutions; 2) the trial court erred by denying Pedroza's requested jury instruction defining the statutory terminology "likely to engage in acts of sexual violence"; and 3) the trial court erred by allowing the State's psychologists to testify that they believed Pedroza would reoffend. These are the same issues we that we considered in Westerheide v. State, 767 So. 2d 637 (Fla. 5th DCA 2000). As we did in Westerheide, we affirm on all of these issues.
The other issues raised by Pedroza, with one exception, are without merit and do not warrant discussion. The issue that does warrant discussion involves prejudicial comments that the attorney for the State made during closing argument. Perdoza's attorney objected to one prejudicial remark, but did not object to the other. The objection that was made was sustained by the trial court, but Pedroza's attorney failed to move for mistrial. Improper comments during closing argument, like other trial errors, must be properly preserved for appeal by making a contemporaneous objection. See Murphy v. International Robotics Sys., Inc., 766 So. 2d 1010 (Fla. 2000). If a party makes a contemporaneous objection to an improper comment which is sustained by the trial judge, the party must move for mistrial if he or she wishes to preserve the objection for appellate review. See Ed Ricke & Sons, Inc. v. Green, 468 So. 2d 908 (Fla. 1985); Weise v. Repa Film Int'l, Inc., 683 So. 2d 1128 (Fla. 4th DCA 1996); Hagan v. Sun Bank of Mid-Florida, N.A., 666 So. 2d 580 (Fla. 2d DCA 1996), disapproved of on other grounds, Murphy v. International Robotics Sys., Inc., 766 So. 2d 1010 (Fla. 2000); Newton v. South Florida Baptist Hosp., 614 So. 2d 1195 (Fla. 2d DCA 199
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