Drayton v. State, s. 73-860
| Decision Date | 02 April 1974 |
| Docket Number | Nos. 73-860,73-1155,s. 73-860 |
| Citation | 292 So.2d 395 |
| Parties | Timothy Ellis DRAYTON, Appellant, v. The STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Phillip A. Hubbart, Public Defender, and Mark King Leban, Asst. Public Defender, for appellant.
Robert L. Shevin, Atty. Gen., and J. Robert Olian, Asst. Atty. Gen., for appellee.
Before CARROLL, HENDRY and HAVERFIELD, JJ.
Defendant-appellant was charged by information #73-1529 filed on March 6, 1973 with the robbery of one Alfred Gustinger on the night of September 11, 1972. By a second information (#73-1530) defendant also on March 6, 1973 was charged with the robbery of one James Nicholson on the evening of October 10, 1972. Separate jury trials were held on each charge at the conclusion of which the defendant was found guilty and sentenced to the state penitentiary.
At the first trial for the robbery of Mr. Gustinger, over defense counsel's objection, the court allowed Mr. Nicholson to testify that the defendant was the person who robbed him on October 10, 1972. Likewise, at the second trial, Mr. Gustinger was permitted to testify as to the appellant robbing him on September 11, 1972. The state proffered the above testimony on the grounds that it related to the issue of identity and common scheme and both juries were so cautioned in their consideration thereof.
On appeal, appellant contends that the trial court erred in allowing the testimony of other crimes where such testimony became a feature of the defendant's respective trials, thus denying defendant his right to a fair trial. We find merit in this contention.
Evidence revealing other crimes is admissible if relevant except to prove bad character or criminal propensities. Williams v. State, Fla.1959, 110 So.2d 654; State v. Norris, Fla.1964, 168 So.2d 541. Relevant evidence is evidence which proves or tends to prove any fact material to the issues in the case before the court. 13 Fla.Jur. Evidence § 113 (1957) and cases cited therein. In criminal cases the following may be at issue: identity, common scheme or design, guilty knowledge, intent, motive, or pattern, absence of mistake, alibi, entrapment, etc., and evidence is admissible if it is relevant to prove the above issues. See Marion v. State, Fla.App.1974, 287 So.2d 419.
Turning to the case sub judice, the state contends that the testimony tending to show the accused had committed another crime was relevant to the issue of identity. However, the record on both cases clearly demonstrates that both victims positively identified the accused as the person who robbed them and thus the prosecution had adduced sufficient evidence to convict the appellant of the crimes charged. We, therefore, can only conclude that the testimony of a similar crime committed by the defendant...
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