Pugh v. State, AY-349
| Decision Date | 19 February 1985 |
| Docket Number | No. AY-349,AY-349 |
| Citation | 10 Fla. L. Weekly 442,463 So.2d 582 |
| Parties | 10 Fla. L. Weekly 442 Robbie PUGH, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Michael E. Allen, Public Defender; and Virginia Daire, Asst. Public Defender, Tallahassee, for appellant.
Jim Smith, Atty. Gen., and Lawrence A. Kaden, Asst. Atty. Gen., Tallahassee, for appellee.
Appellant/defendant was convicted by jury of grand theft and sentenced under the sentencing guidelines to five years in state prison. He now appeals both the conviction and the five year sentence. We affirm the conviction, but reverse and remand as to the sentence.
The first issue raised by appellant is whether the trial court erred in refusing to suppress an identification based on a "photo display." Appellant argues that his was the only photo out of seven depicting a clean-shaven man and, thus, the display was "impermissibly suggestive."
The Florida Supreme Court has stated that the "primary evil" to be avoided with the use of out-of-court identifications is the "very substantial likelihood of misidentification." Grant v. State, 390 So.2d 341 (Fla.1980), cert. denied, 451 U.S. 913, 101 S.Ct. 1987, 68 L.Ed.2d 303 (1981). In adopting the test set out by the U.S. Supreme Court in Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972), the Florida Supreme Court stated the two-fold inquiry to be:
(1) did the police employ an unnecessarily suggestive procedure in obtaining an out-of-court identification;
(2) if so, considering all the circumstances, did the suggestive procedure give rise to a substantial likelihood of irreparable misidentification.
The factors to be considered in determining whether a likelihood of misidentification exists include the opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of the witness' prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation.
Grant, 390 So.2d at 343, quoting Neil v. Biggers, 409 U.S. at 199-200, 93 S.Ct. at 382.
The trial judge examined the photo display in court and stated on the record that he was unable to tell whether defendant was the only man with no facial hair, that it appeared to him that two other men besides defendant had no facial hair, and that none of the men had beards. As we agree, after examination, with the trial judge that the photo display was not suggestive, we find it unnecessary to consider whether the procedure gave rise to a likelihood of misidentification.
Defendant next argues that the trial court made several errors in the calculation of his five year sentence under the sentencing guidelines. First, appellant argues that the 15 points assigned for one prior second-degree felony conviction should be removed from his scoresheet. Appellant was convicted in 1976 under section 812.031, F.S. ("Receiving stolen property"), a third-degree felony. That section was repealed in 1977 and replaced with section 812.019, making the same offense a second-degree felony. The proper degree was not ascertained at the sentencing hearing, and the conviction was scored as a second-degree felony.
The only guidance we find applicable to this issue is contained in the Committee Note to Rule 3.701(d)(5), Fla.R.Crim.P., which states:
Any uncertainty in the scoring of the defendant's prior record shall be resolved in favor of the...
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O'Neill v. State, 94-819
...5th DCA 1987); Roberts v. State, 507 So.2d 761 (Fla. 1st DCA 1987); Johnson v. State, 476 So.2d 786 (Fla. 1st DCA 1985); Pugh v. State, 463 So.2d 582 (Fla. 1st DCA 1985). However this rationale ignores the language of section 775.084. The cases cited by O'Neill rely on the Committee Note to......
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Kelly v. State, BH-124
...based on Kelly's failure to object to the points on the ground now relied on and further, that Bordeaux conflicts with Pugh v. State, 463 So.2d 582 (Fla. 1st DCA 1985), wherein misdemeanors were held properly scored as prior convictions and as prior same-category convictions. We again rejec......
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Pugh v. State, BG-370
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Johnson v. State
...... scored as second-degree misdemeanors "on the basis that. they are not considered misdemeanors at the present. time"); Pugh v. State, 463 So.2d 582, 584 (Fla. 1st DCA 1985). . . The. logic of the sentencing guidelines cases is ......