Simpson v. State

• Decision Date: 14 May 1970
• Docket Number: No. M--259,M--259
• Citation: 237 So.2d 341
• Parties: Macio Bernard SIMPSON, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 341

237 So.2d 341

Macio Bernard SIMPSON, Appellant, v. STATE of Florida, Appellee.

No. M--259.

District Court of Appeal of Florida, First District.

May 14, 1970.

Rehearing Denied Aug. 4, 1970.

Louis O. Frost, Jr., Public Defender, Gerald Sohn, Asst. Public Defender, for appellant.

Earl Faircloth, Atty. Gen., Raymond L. Marky, Asst. Atty. Gen., for appellee.

PER CURIAM.

Appellant seeks reversal of a conviction and thirty-year sentence imposed after a jury found him guilty of armed robbery of the Kozy Korner Sundries Store in Jacksonville, Florida, on November 9, 1966.

The principal question raised by appellant is the sufficiency of the evidence to prove his identity as being one of the two persons who committed the crime charged. Our review of the evidence presented to the jury leads us to conclude that the evidence presented a fact question for the jury which resolved the same adversely to the appellant.

We have examined the remaining point raised relating to the instruction given to the jury and find the same to be without merit. See Nelson v. State, 148 Fla. 338, 4 So.2d 375 (1941).

Appellant having failed to demonstrate reversible error, the judgment and sentence herein appealed is affirmed.

CARROLL, DONALD K., Acting C.J., and WINGGINTON and STECTOR, JJ., concur.

ON PETITION FOR REHEARING

SPECTOR, Judge.

Appellant has filed a petition for rehearing, pro se, asserting that this court failed to consider the doctrine of collateral estoppel as elucidated by the United States Supreme Court in Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469. In Ashe, the court held that where a previous judgment of acquittal was based on a general verdict, the federal rule of collateral estoppel requires the court to examine the record of the prior proceeding, taking into account the pleadings, evidence, charge, and other relevant matter, and to conclude whether a rational jury could have grounded its verdict upon an issue other than that which the defendant seeks to foreclose from consideration. By its decision in Ashe, the United States Supreme Court amended the Fifth Amendment of the Federal Constitution by engrafting upon the double jeopardy clause the federal procedural rule of collateral estoppel.

In reliance upon the holding in Ashe, appellant states that in July, 1968, he was tried on charges of committing a robbery at the Kozy Korner Sundries Store and was acquitted. Allegedly, the basis for acquittal in the July, 1968, trial was the State's inability to establish appellant's identity. Accordingly, appellant argues that if he could not be identified as the person who robbed Patricia Daniels, manager of the Kozy Korner Store, on November 9, 1966, and was acquitted of those charges because of such failure in proof, then the State is collaterally estopped from attempting to rpove his identity as being the person who on the same night in question, November 9, 1966, committed a robbery upon one Willie D. Moore at the same time and place. At first blush, the case at bar seems to be on all fours with the circumstances presented in Ashe, and thus the doctrine of collateral estoppel superficially appears appropriate to this case. However, the trial held in July, 1968, on charges of robbing Patricia Daniels was the Second trial on those charges. Said second trial resulted from a reversal by this court of appellant's conviction in 1967 on the same charges of which he was acquitted in July, 1968. Our opinion leading to...