Owens v. State

• Decision Date: 10 September 1974
• Docket Number: No. U--177,U--177
• Citation: Owens v. State, 300 So.2d 70 (Fla. App. 1974)
• Parties: Houston OWENS, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 70

300 So.2d 70

Houston OWENS, Appellant, v. STATE of Florida, Appellee.

No. U--177.

District Court of Appeal of Florida, First District.

Sept. 10, 1974.

Richard W. Ervin, III, Public Defender and David J. Busch, Asst. Public Defender, for appellant.

Robert L. Shevin, Atty. Gen., and Andrew W. Lindsey, Asst. Atty. Gen., for appellee.

McCORD, Judge.

This is an appeal from appellant's conviction and sentence to life imprisonment for rape of a female child under the age of 11 years, a capital offense.

Appellant has raised three points on appeal. He first contends that the court erred in admitting into evidence a certain blue jacket, allegedly the product of an unreasonable search and seizure. Second, appellant contends that the trial judge erred in denying his motion for judgment of acquittal made at the conclusion of the trial and his motion for new trial in that the state failed to prove an essential element of the rape--penetration. Lastly, appellant contends that Section 775.082(1), Florida Statutes, is unconstitutional in that it provides that a person convicted of a capital offense and sentenced to life imprisonment must serve a minimum of 25 years imprisonment before becoming eligible for parole.

As to appellant's first point, the trial court found from the evidence presented that at the time of the alleged search and seizure of the blue jacket, the defendant's mother was the legal custodian of the premises from which the jacket in question was removed; that the defendant, not being the custodian of the premises, had no legal standing to object to the search if there was a search; that at the time of and prior to the removal of the jacket from the premises in question, the defendant's mother, who was the custodian of the premises, had given the officer permission to search her premises including the room occupied by the defendant after being told that she did not have to permit such a search. From our review of the evidence it appears that immediately after appellant was taken into custody, a police officer went to the home where appellant resided with his mother in an attempt to locate the blue jacket; that he did not obtain a search warrant because it was known in the neighborhood that appellant had been taken into custody and the officer was afraid that the evidence might be destroyed if he delayed long enough to get a warrant. Although the evidence is conflicting as to the events following the officer's arrival at the home, he testified that upon his arrival he spoke to appellant's mother and advised her that her son had been taken into custody on suspicion of raping a nine-year-old child; that he had reason to believe that certain clothing worn by appellant, particularly a jacket with the name tag 'Don,' was located in the house; that he further advised her that he did not have a search warrant; that she had a right to refuse to let him search her house; that she had a right to contact her attorney; that if he did search the house and found incriminating evidence, it could be used against appellant. He further testified that appellant's mother told him that if appellant was involved in a rape, she wanted to know about it, and she then proceeded to the bedroom which she indicated was appellant's room and as he (the officer) stood in the doorway, she searched the room for the jacket, found it and brought it out; that he asked her to let him have the jacket and she handed it to him.

Appellant in support of his contention that this was an unreasonable search and seizure relies upon Bumper v. North Carolina, 391 U.S. 543, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968). In Bumper, however, the search of the home where the defendant resided was made through subterfuge. Four police officers had gone to the home of a widow with whom the defendant lived and announced...