BUTLER v. STATE (1999)

District Court of Appeal of Florida,Third District.

Derondeil Tirell BUTLER, Appellant, v. The STATE of Florida, Appellee.

No. 98-2300

Decided: February 10, 1999

Before COPE, LEVY, and SHEVIN, JJ.

Bennett H. Brummer, Public Defender, and Marti Rothenberg, Assistant Public Defender, for appellant. Robert A. Butterworth, Attorney General, and Dominique T. Suite-Brown, Assistant Attorney General, for appellee.

Derondeil Tirell Butler appeals his conviction for leaving the scene of an accident with injuries. See § 316.027, Fla. Stat. (Supp.1996). The trial court sustained the defendant-appellant's objections to the prosecutor's improper remarks during opening statements, and gave a curative instruction to the jury. We conclude that the denial of the defendant's motion for mistrial was within sound discretion. See Gudinas v. State, 693 So.2d 953, 964 (Fla.), cert. denied, 522 U.S. 936, 118 S.Ct. 345, 139 L.Ed.2d 267 (1997). The court sustained the defendant's objection to a police officer's testimony regarding the source of photos for the photo lineup, which could be interpreted as suggesting to the jury that defendant had a prior arrest record. We concur that a mistrial was not called for, see id., and a curative instruction undoubtedly would have been given if requested. Assuming arguendo that there was any error, it was harmless. See Watts v. State, 593 So.2d 198, 203 (Fla.1992); State v. DiGuilio, 491 So.2d 1129 (Fla.1986).

Affirmed.

PER CURIAM.

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