Davis v. State, 72--346

• Citation: 276 So.2d 846
• Decision Date: 05 January 1973
• Docket Number: No. 72--346,72--346
• Parties: Cullen DAVIS, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 846

276 So.2d 846

Cullen DAVIS, Appellant, v. STATE of Florida, Appellee.

No. 72--346.

District Court of Appeal of Florida, Second District.

Jan. 5, 1973.

Rehearing Denied May 2, 1973.

Walter R. Talley, Public Defender, Bradenton, for appellant.

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

LILES, Judge.

Appellant was informed against for the crime of robbery of Miss Virginia Brown, an employee of Pioneer Cleaners. The jury convicted him and he was sentenced to ten years in prison. Neither the public defender's nor the State's brief was of any assistance to the court in this appeal. The public defender filed a brief commonly referred to as an 'Anders' brief, alleging that they could find no arguable support for the appeal. The State agreed with the public defender.

Appellant was tried for robbing Miss Virginia Brown at approximately 2:00 P.M. on December 27, 1971, while she was working at the Pioneer Cleaners in Tampa, Hillsborough County, Florida. She testified that two men entered the place of business and asked for change for a ten dollar bill. She did not have change but advised them that they could get change next door. Immediately thereafter, they returned to the Pioneer Cleaners and were standing at the counter. The next thing she heard was someone say, 'Are you going to hand it over easy?' She turned and saw the gun. She could not describe the gun because all the could see was the hole at the end of it. They did not rob Pioneer Cleaners but took $5.00 from Miss Brown's wallet which was in her purse and left. She was certain that appellant was the one who robbed her. This alone, if the jury believed it, was enough to convict the appellant of the crime charged.

The State then proffered testimony of a separate and independent crime, i.e., armed robbery. At the conclusion of the proffer, defense counsel moved that the testimony be excluded since it was inadmissible under Williams v. State, Fla.1959, 110 So.2d 654. The court overruled defense counsel's objection and the testimony was admitted.

Mrs. Catherine Morris testified that on December 22, 1971, while she was employed at Mingo's Food Store in Hillsborough County, she was approached by an individual wearing a woman's bikini pants over his head. He had a blue sock on his right hand and a kitchen towel over his left hand. He took money from her and left. Mrs. Morris was asked the question: 'Mrs. Morris, you are absolutely positive that this is the man that robbed you that day?' Her answer was: 'No, because I did not see his face except for his build, his manner of being, and his voice.' She testified that there was no distinguishing features about appellant but she identified him as being the person who robbed her because he had been in and out of the store so many times.

The testimony of Miss Shirley Wilbon, aonther clerk at Mingo's, was virtually the same as the testimony of Mrs. Morris.

This court has rather liberally construed Williams v. State, supra, and has been called upon numerous times to interpret the principles laid down in that case. We reiterate here what we believe this case stands for:

'(E)vidence revealing other crimes is admissible if it casts light upon the character of the act under investigation by showing motive, intent, absence of mistake, common scheme, identity or a system or general pattern of criminality so that the evidence of the prior offenses would have a relevant or a material bearing on some essential aspect of the offense being tried.' Williams v. State, 110 So.2d at 662.

From the record it appears that the State adduced sufficient proof that the appellant robbed Miss Brown. The State also proved that Mingo's Food Store had been robbed. Although there was some conflict as to the testimony regarding identification, the jury could certainly have believed that the appellant robbed Mingo's. But these are two separate and distinct crimes. One is not relevant. The evidence of one of the offenses would have no relevancy or material bearing on an essential aspect of the other as required by Williams. One does not go to prove intent, common scheme, identity and certainly no general pattern as required by Williams. These are two separate and distinct crimes. The State went in for the overkill and in doing so committed reversible error.

For these reasons we reverse and remand for a new trial.

MANN, C.J., and PIERCE, J. (Ret.), concur.

ON PETITION FOR REHEARING

MANN, Chief Judge.

Technically, the Attorney General is right. We did consider a point not raised by the appellant in his brief. In fact, the former Public Defender for the Twelfth Circuit did not raise any point in his brief. We deny rehearing.

In the event the State wishes to allege that we are in conflict with Proctor v. Hart, 1854, 5 Fla. 465, and McNally v. State ex rel. Bond Realization Corp., 1933, 112 Fla. 434, 150 So. 751, and seek certiorari, it may help to describe the procedural posture of the matter as we see it. We did by-pass the procedures a bit by recognizing the obvious error in this record. The State, in its petition for rehearing, makes no charge that we were wrong on the law or that there is any argument that can be made in support of this judgment. Rule 3.14, F.A.R., 32 F.S.A., provides that 'The petitioner shall be entitled to file only one petition for rehearing with respect to the particular decision and no further petition or motion will be received or filed by the clerk or considered by the Court.' This explains why, in Cottages, Miami Beach, Inc. v. Wegman, Fla.1952, 59 So.2d 528, our Supreme Court denied the motion for leave to file an extraordinary petition for rehearing and then proceeded, on its own motion, to reconsider the case and to remand it.

Our impression has been that the staff of the Attorney General in his Tampa office is now too small adequately to brief the cases pending in this court, and we doubt that the State will pursue this case further. In case it does, however, we want to say a few things about it.

One witness to the crime charged testified. Her testimony takes up 13 pages in the transcript. Two witnesses testified that Davis committed another robbery at another time, in another place, in another manner--that time he was disguised in a pair of women's bikini panties, worn as a mask. We cannot see one single common element in these two crimes. Testimony of the extraneous offense was presented through two witnesses, and takes up 25 pages in the transcript. It clearly became a 'feature' of the trial. See Green v. State, Fl...