Gerardo v. State, 77-257
| Decision Date | 21 February 1978 |
| Docket Number | No. 77-257,77-257 |
| Citation | 355 So.2d 1221 |
| Parties | Rene GERARDO, Appellant, v. The STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Horton, Perse & Ginsberg, Miami, for appellant.
Robert L. Shevin, Atty. Gen., and Anthony C. Musto, Asst. Atty. Gen., for appellee.
Before PEARSON, NATHAN and HUBBART, JJ.
The defendant, Rene Gerardo, was informed against for the crime of intentionally receiving, retaining, disposing of, or aiding in the concealment of, stolen property, to wit: miscellaneous jewelry, without the consent of the owner, knowing that it had been stolen or under such circumstances as would induce a reasonable man to believe that the property had been stolen, all in violation of Section 812.031(1), Florida Statutes (1975). The defendant pled not guilty and moved to dismiss the information. The motion was denied. After a jury trial, a guilty verdict was returned and judgment and sentence were entered. This appeal is from that judgment.
The defendant was the president, stockholder and custodian of the books and records of a corporation known as K & G Jewelry, Inc., a Florida corporation, located in the Seybold Building in downtown Miami, Florida. K & G Jewelry, Inc., as its name indicates, sold jewelry to the general public.
Sonia Miller was the president of a corporation known as Sonny Miller, Inc., and at one time operated a jewelry sales and antique business at 6716 Collins Avenue, Miami Beach. Late on the last night in January or the very early morning of the first of February, 1976, Mrs. Miller was attempting to open and operate a jewelry and antique business. At that time, she had some $240,000.00 of jewelry in boxes which had been placed into the area where she intended to open her new business. She left the jewelry in the store with the lights on and, with her daughter, went next door for something to eat. When she and her daughter returned at approximately 1:00 a.m., or shortly thereafter, on February 1, 1976, they found that the lock had been pulled off the front door, the door was open and, of course, the jewelry was gone. Mrs. Miller reported the theft.
Later, Mrs. Miller was in downtown Miami in the Seybold Building at K & G Jewelry. There, in the window, she saw an opal mosaic pin on a black velvet bust. She immediately recognized it as being a pendant that was among the jewelry stolen from her. She and a friend, Mr. Krumholtz, went to K & G Jewelry and Mr. Krumholtz spoke to the defendant, introducing Mrs. Miller and advising the defendant that Mrs. Miller had seen some stolen jewelry in his window and would he please talk to her. Krumholtz left; shortly thereafter, the defendant said he would not talk to Mrs. Miller at that time and that she would have to come back later. Mrs. Miller then went downstairs to call the police. She testified that she was gone only about five minutes and that when she returned, the pendant was no longer in the window. She saw that the bust was still there but there was no jewelry on it. Later, Mrs. Miller and a policeman went back to K & G Jewelry, at which time the defendant denied knowing anything about the pendant. The police officer reminded him that it had been on a bust in his jewelry store window, but he insisted that he knew nothing about it. The police officer asked the defendant if anybody in the shop had sold the pendant and the defendant stated that he did not know, but inquired of two of his employees concerning whether or not they had sold the pendent out of the window. Both employees indicated they had not. A search warrant was obtained to search the K & G Jewelry premises. Mrs. Miller and the police officer then returned to K & G Jewelry where Mrs. Miller identified numerous pieces of jewelry that she said belonged to her and that were taken in the robbery of February 1, 1976.
Prior to the trial, on May 3, 1976, the State issued a witness subpoena duces tecum directed to the Custodian of Records of K & G Jewelry, Inc., which defendant alleges was served personally upon him. On May 13, 1976, the return day of the subpoena, the assistant state attorney was advised by counsel for the defendant that he would not honor the subpoena and, on May 14th, the State filed a motion to compel production of the records, pursuant to the witness subpoena duces tecum served on the defendant. On May 19th, the defendant appeared before an assistant state attorney and produced the books and records as required by the subpoena duces tecum. By way of a motion to dismiss, the defendant contended that by complying with the subpoena he had been immunized from prosecution through Section 914.04, Florida Statutes (1975), and the applicable decisions construing that statute. The motion was denied.
At trial, evidence was presented by the State showing that the persons from whom the defendant said he had purchased the stolen items did...
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State v. Barreiro, 83-504
...1804, 14 L.Ed.2d 724 (1965) (same); Fineberg v. United States, 393 F.2d 417 (9th Cir.1968) (same, close corporation); Gerardo v. State, 355 So.2d 1221 (Fla.3d DCA), cert. denied, 364 So.2d 885 (Fla.1978) (defendant's act of producing books and records pursuant to subpoena duces tecum served......
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Wylie v. State, 65016
...reached the same conclusion. See Mitchell v. State, 120 Ga.App. 447, 170 S.E.2d 765 (1969). Under similar circumstances Gerardo v. State, (Fla.), 355 So.2d 1221 (1978), affirmed a conviction based in part on the fact that the close inspection through the door crack followed the observation ......
- Gerardo v. State