Sosa v. State, 92-2521

Decision Date05 July 1994
Docket NumberNo. 92-2521,92-2521
Citation639 So.2d 173
Parties19 Fla. L. Weekly D1441 Jesus SOSA, Appellant, v. The STATE of Florida, Appellee.
CourtFlorida District Court of Appeals

Bennett H. Brummer, Public Defender, and Harvey J. Sepler, Asst. Public Defender, for appellant.

Robert A. Butterworth, Atty. Gen., and Daisy Y. Guell, Asst. Atty. Gen., for appellee.

Before HUBBART, NESBITT and GODERICH, JJ.

PER CURIAM.

Pursuant to jury verdict, the defendant, Jesus Sosa, was convicted of attempted second-degree murder and possession of a firearm by a convicted felon. We reverse and remand.

According to victim Jean Bollinger's testimony, on April 20, 1992 at about 3:00 P.M., Bollinger was driving down Collins Avenue on Miami Beach when he noticed the defendant in a dark blue Mustang coming up from behind him. The Mustang followed him for a distance, unsuccessfully trying to pass him in the traffic. Bollinger changed lanes in an effort to elude the Mustang. At one point, Bollinger saw the driver, the defendant, reach out his left hand and touch the car's side mirror. Bollinger could see what appeared to be a handgun in the defendant's hand and he heard two gunshots. Bollinger attempted to flee, but the Mustang stayed behind him. As he approached a traffic light, Bollinger heard several more gunshots, one of which struck Bollinger's car.

At that point, the Mustang drove off in another direction. Bollinger found police officer William Riley, and reported the incident. Bollinger gave the officer a description of the Mustang and the driver. Bollinger remained at that location until the arrival of another officer, Richard Lonergan, who then took Bollinger to a site where the defendant was in custody, surrounded by police officers.

Once there, Bollinger confirmed to Lonergan that the defendant was his assailant. The final witness to testify was Officer Zacarias, who conducted the investigation, along with Lonergan and Riley. Zacarias, over defense objection, was permitted to testify that pursuant to a search of the defendant's car, he found a pair of handcuffs and a bag of .380 rounds.

In the initial information, the state charged the defendant as a convicted felon based upon what it thought was a 1990 conviction. The state moved to sever the counts, and the defense objected. The day of the trial, after the jury was sworn, the state moved to amend the information, as to the convicted felon count, having found that Sosa had been convicted in 1986, and not, as charged, in 1990.

Defense counsel strenuously objected and argued that since the defense to this count was based on the charged 1990 offense, the amendment worked as surprise and that if the court allowed the amendment, the counts should be severed. The trial court permitted the state to amend the information, but denied Sosa's motion to sever the attempted second-degree murder count and the possession of a firearm by a convicted felon count. During the trial, counsel objected to the refusal to sever and the introduction of evidence of the prior conviction. Sosa's counsel stated that he was unprepared to defend against this count, and stipulated during trial, to the prior conviction. In its closing, the state argued that this stipulation served, in effect, as proof of count two. Sosa's couns...

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14 cases
  • Williams v. State Of Fla.
    • United States
    • Florida District Court of Appeals
    • July 14, 2010
    ...when prejudice is likely to flow from a denial of severance. State v. Vazquez, 419 So.2d 1088, 1090 (Fla.1982); Sosa v. State, 639 So.2d 173, 174 (Fla. 3d DCA 1994). See also Livingston, 565 So.2d at 1290 United States v. Lane, 474 U.S. 438, 106 S.Ct. 725, 88 L.Ed.2d 814 (1986), noting that......
  • Council v. State, 95-0999
    • United States
    • Florida District Court of Appeals
    • April 23, 1997
    ...not tend to prove or disprove a material fact because it had been given no connection whatsoever to the charged offense. Sosa v. State, 639 So.2d 173 (Fla. 3d DCA 1994), cited by the defendant, is also distinguishable from the facts of this case. In Sosa, the defendant was charged with firi......
  • Garcia v. State, 94-1028
    • United States
    • Florida District Court of Appeals
    • May 24, 1995
    ...abused its discretion in admitting the holster and the cash, as neither was relevant to any portion of the case. See Sosa v. State, 639 So.2d 173, 174 (Fla. 3d DCA 1994) (ammunition found in defendant's vehicle erroneously admitted where "[n]o weapon was found, no ballistics tests performed......
  • Jeanbart v. State
    • United States
    • Florida District Court of Appeals
    • April 1, 2020
    ...found some distance from the crime scene of an aggravated assault, but where there was no link to the charged crime); Sosa v. State , 639 So. 2d 173, 174 (Fla. 3d DCA 1994) (holding that where the defendant was charged with firing a handgun at the victim's car, trial court erred in admittin......
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