Glas v. State, s. 75--829
| Decision Date | 17 March 1976 |
| Docket Number | Nos. 75--829,75--857,s. 75--829 |
| Parties | Robert Jerry GLAS, a/k/a Kenneth Robert Fusco, Appellant, v. The STATE of Florida, Appellee. Raymond C. DIAZ, Appellant, v. The STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Phillip A. Hubbart, Public Defender, and Mark King Leban and Elliott Scherker, Asst. Public Defenders, for appellants.
Robert L. Shevin, Atty. Gen., and Margarita G. Esquiroz, Asst. Atty. Gen., for appellee.
Before HENDRY and NATHAN, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
Co-defendants, Robert Jerry Glas a/k/a Kenneth Robert Fusco and Raymond C. Diaz, were charged in the same information with robbery and carrying a concealed firearm. Both defendants pled nolo contendere to robbery and the State abandoned the charge of carrying a concealed firearm against both defendants. The trial court entered judgments of conviction and sentenced Glas to 25 years in the state penitentiary, 20 years to be stayed and withheld and at the completion of 5 years, probation for 20 years and sentenced Diaz to 15 years in the state penitentiary, 12 years to be stayed and withheld and at the completion of 3 years, probation for 12 years.
Since the charges against Glas and Diaz arose from the same incident, the separate appeals from the judgment of conviction and sentence of Glas and of Diaz will be treated together in his opinion.
The facts are that on November 3, 1974, two men entered a Cumberland Farm store and at gunpoint, forced the cashier to hand over the money. In addition to the cashier, there were three other witnesses, two in the store, a customer and the cashier's 14-year-old son, and a man who, while walking his dog across the street, observed the license number, the make and color of the car in which the robbers escaped, and the driver. With the license number and description of the getaway car and driver, the police were able to locate the defendants shortly after the robbery and in less than 2 hours, the witnesses were contacted and asked to return to the store for a showup to identify the suspects. The defendants were viewed behind a one-way mirror, and both Glas and Diaz were identified by the three witnesses who were in the store. A third suspect, who was later dismissed as a defendant in the case, was identified by the man who had been across the street as the driver of the getaway car.
Defendants, Glas and Diaz, both made motions to suppress the show-up and subsequent line-up and in-court identifications. The court granted the motions as to some of the witnesses, but denied Glas' motion as to identification by the customer and Diaz's motion as to identification by the customer and the cashier, since each one identified the respective defendant(s) both in and out of court. When the court found identification by these witnesses to be untainted and admissible, both Glas and Diaz pled nolo contendre to the charge of robbery, and they were both convicted and sentenced on that charge. (The State abandoned the charge of carrying a concealed firearm.)
The points raised on appeal are (1) that the pretrial identification was unnecessarily suggestive and conducive to irreparable mistaken identification so as...
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