Taylor v. State

• Citation: 436 So.2d 124
• Decision Date: 20 April 1982
• Docket Number: No. 81-394,81-394
• Parties: Gloria TAYLOR, Appellant, v. The STATE of Florida, Appellee.
• Court: Court of Appeal of Florida (US)

Page 124

436 So.2d 124

Gloria TAYLOR, Appellant, v. The STATE of Florida, Appellee.

No. 81-394.

District Court of Appeal of Florida Third District.

April 20, 1982.

On Rehearing En Banc Aug. 2, 1983.

Sweetapple & Kamilar and Robert A. Sweetapple, Miami, for appellant.

Jim Smith, Atty. Gen. and Calvin L. Fox, Asst. Atty. Gen., for appellee.

Before HENDRY, BASKIN and JORGENSON, JJ.

BASKIN, Judge.

Due process violations require reversal of Gloria Taylor's probation revocation. The affidavit alleged that she violated her probation by committing an armed robbery of Michele Peletier. At the beginning of the probation violation hearing, the court permitted the state to change the name of the victim to "Darlene Mack and/or Denise Sortini."

Defense counsel argues that, after the trial court refused to preclude defendant's new counsel from taking Darlene Macks's deposition, the state failed to furnish her correct address. The state's conduct, he asserts, undermined his preparation because he relied upon the state's allegation that Michele Peletier was the victim of the offense charged. Michele Peletier had failed to appear when noticed for deposition, and the surprise amendment of the affidavit prejudiced the defense. We agree that the trial court erred in refusing to allow defense counsel an opportunity to prepare for the substantive change in the charging document and that the denial deprived defendant Taylor of due process of law. Cuciak v. State, 410 So.2d 916 (Fla.1982); see Hines v. State, 358 So.2d 183 (Fla.1978).

In addition, we note that the order revoking probation states that defendant Taylor committed an armed robbery against Michele Peletier. Since Michele Peletier neither appeared nor testified at the hearing and no evidence of any crime against Peletier was presented, the trial court's order revoking probation is reversed on that ground as well.

Reversed and remanded.

JORGENSON, Judge, dissenting.

I respectfully dissent.

The amendment of the affidavit of violation of probation was not prejudicial to this defendant, nor has the record been properly preserved for our review. Nelson v. State, 85 So.2d 832 (Fla.1956); Constantino v. State, 224 So.2d 341 (Fla. 3d DCA 1969).

The affidavit of violation of probation was properly amended prior to the taking of any testimony so as to reflect the name of the true victim, Darlene Mack, whose deposition had previously been taken by prior counsel and who was a named victim in the information in the substantive case. ¹ I fail to see how the granting of the motion to amend the affidavit of violation of probation does anything other than prevent a defense "gotcha". ²

The applicable provision of Fla.R.Crim.P. 3.220(d), dealing with discovery depositions by the defendant, makes no mention of multiple depositions of the same witness. The trial court simply did not err when it refused to grant a continuance for the taking of a second deposition of the victim/witness who had been previously deposed. Repetitive depositions can serve only to further disenchant the public with the processes of the criminal justice system. ³

This record demonstrates that the defendant had the benefit of a discovery deposition of the victim, taken by predecessor counsel. That deposition was used for impeachment purposes during the course of the hearing below. ⁴ The victim identified the defendant shortly after the robbery. The identification was buttressed by the victim's detailed description of the defendant, including an unusual birthmark over the eye. This information was given to the police prior to the defendant's apprehension. The victim's identification of the defendant, both at the scene and in court, was unequivocal. Field confrontation is inherently more reliable than any subsequent identification. State v. Freber, 366 So.2d 426 (Fla.1978); Miller v. State, 403 So.2d 1017 (Fla. 5th DCA 1981). Given the totality of the identification procedure in the field and the subsequent in-court identification, no error has been demonstrated. Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972); Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968).

Since the trial court properly amended the affidavit of violation, the error in the order of revocation should be cured by a consistent amendment reflecting the name of the true victim.

I would affirm.

Before SCHWARTZ, C.J., and HENDRY, BARKDULL, HUBBART, NESBITT, BASKIN, DANIEL S. PEARSON and JORGENSON, JJ. ^*

ON REHEARING EN BANC

DANIEL S. PEARSON, Judge.

We grant the State's motion for a rehearing en banc to review the panel decision which we find to be in conflict with Stevens v. State, 351 So.2d 1077 (Fla. 3d DCA 1977), aff'd and quashed in part on other grounds, 372 So.2d 1370 (Fla.1979). ¹ , ² We vacate the panel decision and affirm the trial court's order revoking the defendant's probation.

The affidavit for violation of Taylor's probation charged in pertinent part that "on or about April 24, 1980, in Dade County, Florida, the probationer did commit the Offense of Armed Robbery against Michelle Peletier in violation of Florida Statutes ...." The corresponding information charged the defendant with committing the substantive offense of armed robbery on that date in Dade County and named the victims as being Darlene Mack and Denise Sortini. Before the commencement of the probation violation hearing, the Assistant State Attorney moved to amend the affidavit so as to accurately reflect the names of the victims as Mack and Sortini. He explained that Mrs. Mack and her fifteen-year-old daughter, Denise Sortini, were using a vehicle which Mack had borrowed from Peletier when they were held up by the defendant. Of course, defense counsel already knew this, because five months earlier Mack and Sortini had been deposed in preparation for the trial on the substantive charge contained in the information. ³ Notwithstanding this knowledge, defense counsel reflexively recited the litany of "no notice," "untimely," "surprise," and "prejudice" to the State's motion to amend. The litany was belied not only by what defense counsel knew, but by the fact that only moments before he was insistent that the substantive trial precede the probation violation hearing. In the words of the prosecutor:

"I don't see any prejudice to the Defendant.... [H]e wants to proceed on the substantive case first and [now] he says that he is not prepared to proceed with the victims who are stated in the Information. That just doesn't seem to make any sense."

Indeed, it did not make any sense, and the trial judge allowed the affidavit to be amended.

The hearing proceeded. The State called several witnesses, including Mrs. Mack. She identified the defendant as being one of the two people who stole the vehicle at gunpoint. Defense counsel extensively cross-examined her, effectively utilizing her prior sworn deposition to refresh her recollection or to impeach her. Defense counsel then called as his witness the other victim of the crime, Denise Sortini, confident that he could elicit from her testimony that (a) the entire incident took two or three minutes (not, as Mack had testified, ten or fifteen minutes); (b) she noticed nothing unusual about the defendant's face (not, as Mack had testified, that the defendant had a severely bruised left eye); and (c) unlike Mrs. Mack, Denise could not identify the defendant immediately after Taylor's arrest. Defense counsel's confidence arose, obviously, from the fact that Denise had previously made such statements in her sworn deposition to which defense counsel generously referred whenever Denise wavered from her expected trial testimony.

Counsel followed this by calling two witnesses, Veronica Martin and Jill Brown, to establish an alibi for the defendant and, incidentally, to refute Mrs. Mack's testimony that the defendant's left eye was bruised. The defendant then testified that she was with Veronica, Jill and others at someone's home during the time that the robbery was said to have occurred. Only with complete knowledge of the victims' expected testimony would this alibi defense have been possible.

We do not think it could be any clearer that the defendant, through the substantive charge contained in the information and through the depositions of Mack and Sortini, had actual notice that Mack and Sortini were the sole victims of the armed robbery and that Peletier, despite being named as a victim in the affidavit, was merely the owner of the vehicle borrowed by Mack. Had the State proceeded to a hearing on the affidavit naming Peletier as the victim and proved, instead, that Mack and Sortini were the actual victims, Stevens v. State would compel us to reject the defendant's claim that the variance was fatal, since it so clearly appears that the defendant was neither misled nor embarrassed in the preparation of her defense. See Hines v. State, 358 So.2d 183 (Fla.1978). The amendment of the affidavit before the hearing had the totally immaterial effect of changing the label placed on the result from "nonprejudicial variance" to "nonprejudicial amendment."

Moreover, we simply cannot discern what discovery rule the defendant contends was violated. Certainly there could be no violation by the State's failure, if it occurred, to furnish Mrs. Mack's correct address to the defendant, long after Mrs. Mack had been deposed. Certainly any contention that the defendant was entitled to separately depose Mrs. Mack for the probation violation hearing after she had been deposed in connection with the substantive charge is completely frivolous in light of Cuciak v. State, 410 So.2d 916 (Fla.1982), which allows for discovery in probation revocation hearings only where such hearings are not bottomed on offenses which are simultaneously the subject of criminal proceedings in which discovery is provided for by rule. Certainly Michele Peletier's failure to appear for deposition at most would preclude ...