Williams v. State, 88-529

Decision Date11 April 1989
Docket NumberNo. 88-529,88-529
Parties14 Fla. L. Weekly 904 Billy WILLIAMS and Bobby Lee Young, Appellants, v. The STATE of Florida, Appellee.
CourtFlorida District Court of Appeals

Bennett H. Brummer, Public Defender, and Robert Burke, Asst. Public Defender, Miami, Max P. Engel, Fort Myers, and Kenneth Speiller, Miami, for appellants.

Robert A. Butterworth, Atty. Gen., and Joan L. Greenberg, Asst. Atty. Gen., for appellee.

Before BARKDULL and BASKIN, JJ., and JOSEPH P. McNULTY, Associate Judge.

PER CURIAM.

Bobby Lee Young entered a jewelry store owned by the victims, Frank and Martha Perez, and looked at various items. A short time later, he left the store, returned with another man, and discussed a purchase with Martha Perez. During the negotiations, Billy Williams entered and remained in the store for approximately one minute before leaving. He waited outside. Young and his unidentified accomplice then attacked and robbed the Perezes. Frank Perez chased the robbers who were then joined by Williams. During the chase, he signaled a police cruiser to stop and told a police officer that he had been robbed by three black men. When Williams was captured, Perez identified him. Subsequently, Perez, seeing Young behind a nearby restaurant, pointed him out to the police, who arrested Young. Young and Williams were charged with armed robbery.

Prior to trial, Young unsuccessfully sought suppression of Perez's identification. At trial, both Williams and Young were found guilty of robbery with a weapon. The trial court departed from sentencing guidelines and sentenced each defendant to serve 15 years in prison. Williams challenges the guidelines departure; Young seeks to overturn the denial of the motion to suppress the victim's in-court identification and the guidelines departure sentence. We find no error in the denial of the motion to suppress but disapprove the sentences.

First, we address the trial court's denial of the motion to suppress Perez's in-court identification of defendant Young. The trial court based its denial on Perez's testimony that Young was in the well-lit jewelry store for eight to ten minutes; that he clearly observed defendant Young when he was in the store; that he became suspicious and paid close attention to Young; that he chased defendant Young after the robbery occurred and pointed Young out to the police before Young was taken into custody. Perez also identified Young at the scene after the arrest as well as in court.

"[W]hen the police have obtained a pretrial identification by means of an unnecessarily suggestive procedure [exclusion of in-court identification testimony may be required] unless it is found to be reliable and based solely upon the witness' independent recollection of the offender at the time of the crime and uninfluenced by the intervening illegal confrontation." Edwards v. State, 538 So.2d 440, 442 (Fla.1989), and cited cases. Assuming, without deciding, that the identification procedure was unnecessarily suggestive, we conclude that Perez's initial opportunity to observe Young provides indicia of reliability sufficient to support denial of the motion. See State v. Billue, 497 So.2d 712 (Fla. 4th DCA 1986); Dunn v. State, 492 So.2d 808 (Fla. 3d DCA 1986). "The weaknesses in the eyewitness identifications ... were argued to the jury, and ... such weaknesses went to the weight not the admissibility of the ... identification." Perez v. State, 539 So.2d 600 (Fla. 3d DCA 1989). Accordingly, we affirm Young's conviction.

Next, we consider the trial court's reasons for departing from sentencing guidelines. We vacate defendants' sentences and remand for resentencing within the guidelines range. Shull v. Dugger, 515 So.2d 748 (Fla.1987). The trial court based Young's upward departure sentence on: 1) lack of respect for the law evidenced by his fleeing the jurisdiction and 2) an escalating pattern of violent behavior. In support of Williams' departure sentence, the trial court entered an order finding that "defendant's behavior and prior criminal record shows an escalating pattern of violence." These reasons are either invalid--lack of respect for the law, see Robinson v. State, 530 So.2d 1085 (Fla. 4th DCA 1988); Dixon v. State, 513 So.2d 1378 (Fla. 3d DCA 1987); Scott v. State, 488 So.2d 146 (Fla. 3d DCA 1986); but see Brown v. State, 535 So.2d 671 (Fla. 1st DCA 1988); see also Williams v. State, 500 So.2d 501 (Fla.1986); Coleman v. State, 521 So.2d 265 (Fla. 2d DCA 1988), or unsupported by the record--escalating pattern of violent behavior. 1 See McIntyre v. State, 539 So.2d 603 (Fla. 3d DCA 1989); Larry v. State, 527 So.2d 883 (Fla. 1st DCA 1988).

On remand, the trial court should determine the correct guidelines range. Defense counsel challenged the truthfulness of the record of defendants' prior convictions included in the guidelines scoresheet; the trial court, without providing the state an opportunity to corroborate the convictions, struck the challenged points. 2 At resentencing, the state is to be afforded an opportunity to provide such evidence. See Eutsey v. State, 383 So.2d 219 (Fla.1980); L'Homme v. State, 518 So.2d 408 (Fla. 1st DCA 1988); see generally, Minnis v. State, 505...

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3 cases
  • Bennett v. State
    • United States
    • Florida District Court of Appeals
    • 14 Enero 1992
    ...of a crime is relevant to the ability of a witness to make an accurate identification. United States v. King, supra; Williams v. State, 545 So.2d 302 (Fla. 3d DCA 1989). Temporal and geographic proximity are all factors to be considered in determining the probative value of the evidence off......
  • Bryant v. State
    • United States
    • Florida District Court of Appeals
    • 14 Abril 1992
    ...Affirmed. 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); Williams v. State, 545 So.2d 302 (Fla. 3d DCA 1989); Perez v. State 539 So.2d 600 (Fla. 3d DCA ...
  • Baker v. State, 3D07-2478.
    • United States
    • Florida District Court of Appeals
    • 17 Diciembre 2008
    ...should have an opportunity to prove Defendant's prior convictions by corroborating, non-hearsay evidence. See Williams v. State, 545 So.2d 302, 303-04 (Fla. 3d DCA 1989). Reversed and ...

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