Dargans v. State, 71--793

• Decision Date: 29 March 1972
• Docket Number: No. 71--793,71--793
• Parties: Stephen J. DARGANS, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 782

259 So.2d 782

Stephen J. DARGANS, Appellant, v. STATE of Florida, Appellee.

No. 71--793.

District Court of Appeal of Florida, Second District.

March 29, 1972.

Jerry C. Cobb, of Baker, Whitson, Whitson & Cobb, Clearwater, for appellant.

Robert L. Shevin, Atty. Gen., Tallahassee, and David Luther Woodward, Asst. Atty. Gen., Tampa, for appellee.

PIERCE, Chief Judge.

This case is a direct appeal by appellant Stephen J. Dargans (sometimes known as Steven Wilson), from a judgment of conviction entered by the Pinellas County Circuit Court.

Information was filed against Dargans on June 24, 1971, charging him in one count with breaking and entering a building other than a dwelling house with intent to commit a misdemeanor. Upon issues joined by a plea of not guilty, trial by jury was held on September 22, 1971, resulting in a finding of guilt of entering without breaking a building other than a dwelling house with intent to commit a misdemeanor. He was accordingly adjudged guilty and sentenced to a term of imprisonment. A timely-filed Notice of Appeal brings the case to this Court.

Evidence at the trial discloses that on June 2, 1971, at about 1 o'clock A.M. glass was heard breaking at a place known as the Beer Mart in Clearwater and three Negroes were then observed running out of the place carrying cases of beer toward a gray Mercury automobile which immediately was driven off. Shortly thereafter such a car was observed about a half or three-quarter miles away. Dargans who was then sitting in the car was arrested and charged with the burglary. Further investigation disclosed a broken window at the Beer Mart store and four beer cartons outside. A fingerprint was found on the bottom of one of the beer cartons which, when compared with a 'known print' of Dargans was identified as being his.

This is substantially the State's case and Dargans did not choose to testify.

Dargans' defense at the trial, and his sole contention here, is that 'the prosecution had offered no evidence to show that the appellant's fingerprints could have been made only at the time the crime was committed', relying upon this 2nd District Court's opinion in Wilkerson v. State, Fla.App.1970, 232 So.2d 217. In our view, the facts in the instant case are distinguishable from Wilkerson and we therefore affirm.

In Wikerson a clothing store located on a downtown business street in St. Petersburg was broken into during the nighttime and a large quantity of men's clothing taken therefrom. The front door opening into the main street apparently had been the means of ingress and Wilkerson's fingerprints were found on some glass fragments near the front door. No other material evidence was produced against Wilkerson and this Court, upon authority of the 3rd District Court cases of Ivey v. State, Fla.App.1965, 176 So.2d 611, and Tirko v. State, Fla.App.1962, 138 So.2d 388, held--

'* * * that fingerprint evidence must meet the requirement that the circumstances must be such that the print could have been made only at the time the crime was committed. This requirement was not met in this case because the print was in a public place and the record does not preclude that it might have been placed there some time before the crime.'

In the case sub judice, as stated by the able trial Judge, 'the fingerprint in...