Dickey v. State, AW-470
| Decision Date | 06 November 1984 |
| Docket Number | No. AW-470,AW-470 |
| Parties | Winford Lee DICKEY Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Michael Allen, Public Defender; Virginia Daire, Asst. Public Defender, Tallahassee, for appellant.
Jim Smith, Atty. Gen., Gary L. Printy, Asst. Atty. Gen., Tallahassee, for appellee.
Dickey appeals his conviction of grand theft and from the imposition of a sentence allegedly deviating from the sentencing guidelines as established in Rule 3.701, Florida Rules of Criminal Procedure. We affirm.
Dickey was charged with grand theft after he was observed by a store owner and his wife with articles of clothing from the store concealed in leg warmers which he wore under his trousers. As well as the testimony of the owners, the State presented a rebuttal witness to impeach Dickey's previous testimony, volunteered on direct examination, that he had never been in the store prior to the alleged theft. The witness, a store employee, testified that she had encountered Dickey in the store about a month before the incident, and that he had acted in a manner similar to the method of the crime charged, regarding other items of clothing, although she did not actually see him remove items from the store. The defense objected to this "Williams Rule" evidence (specific act testimony) on the ground that it had not received notice of the State's intent to use it at trial. The court held the testimony admissible based on Section 90.404(2)(b), Florida Statutes (1983), which obviates the need for such notice when the testimony is offered for purposes of rebuttal or impeachment, and the jury heard the witness' testimony. Dickey was convicted.
At the subsequent sentencing proceeding, Dickey elected to be sentenced under the guidelines. The court had before it a presentence investigation (PSI) report, which listed 23 arrests; only six of which (one felony and five misdemeanors) had dispositions indicated. The PSI also included information obtained from Dickey's mother and a drug abuse counselor of a longstanding (8-10 years), continuing problem with drug abuse ( addiction to dilaudid) and its contribution to Dickey's criminal history. Dickey's guidelines score sheet reflected a total of 24 points, reflecting the instant conviction and his prior record of one felony and five misdemeanor convictions. The recommended guidelines sentence was "any non-state prison sanction"; the court sentenced Dickey to 40 months in Lantana Correctional Institution, to afford him the opportunity to participate in the drug rehabilitation program there. Its written reasons for this departure were:
Dickey appeals his conviction on the ground that it was error to admit the rebuttal witness' testimony because: 1) the impeached testimony was irrelevant, and it was error to allow it to be impeached, see Section 90.608(1)(e), Florida Statutes, and 2) even if it was relevant, the probative value of the impeaching testimony was outweighed by the danger of unfair prejudice, see Section 90.403, Florida Statutes. We disagree on both counts.
It was not error to allow the witness' testimony for the purpose of impeaching Dickey's statements based on lack of notice. The witness' testimony clearly impeached his credibility and therefore no notice was required. See Tuff v. State, 408 So.2d 724, 729-30 (Fla. 1st DCA 1982); Section 90.404(2)(b), Florida Statutes. As for the grounds for inadmissibility raised by Dickey on appeal, they were not raised at trial. For an argument to be cognizable on appeal, it must be the specific contention asserted as legal grounds for the objection below. Steinhorst v. State, 412 So.2d 332, 338 (Fla.1982). Dickey argues, however, that the actions of the court were...
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