Yost v. State
| Decision Date | 26 January 1971 |
| Docket Number | No. 70--400,70--400 |
| Citation | 243 So.2d 469 |
| Parties | Robert Richard YOST, Appellant, v. The STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Sheldon Yavitz, Miami Beach, for appellant.
Robert L. Shevin, Atty. Gen., and Alan M. Medof, Asst. Atty. Gen., for appellee.
Before BARKDULL, HENDRY and SWANN, JJ.
Defendant appeals the convictions and sentences entered pursuant to jury verdicts of guilty on narcotics violations. He was found guilty of two counts of unlawful sale of marijuana and two counts of unlawful possession of marijuana. See § 398.03, Fla.Stat., F.S.A. Earlier, the trial judge directed a verdict of acquittal as to a fifth count of conspiracy to sell marijuana. See § 833.04, Fla.Stat., F.S.A. Four sentences were entered, as follows: two years on each of the two 'sale' counts and one year on each of the two 'possession' counts, all to run concurrently.
The defendant alleges error in the court's refusing to give a requested jury instruction on identification, permitting certain rebuttal testimony, and refusing to correct the sentences. We find no merit in the first two contentions, and affirm the convictions; however, we vacate the sentences and remand for proper sentencing.
On August 25, 1969, a 'John Doe Information' was filed, and on the same date the defendant was arrested. The State filed the amended information which was the basis for the instant trial. The amended information charged violations in five counts; Count I, unlawful sale of a narcotic drug, to-wit: marijuana, on August 9, 1969; Count II, unlawful sale of a narcotic drug, to-wit: marijuana, on August 12, 1969; Count III, unlawful possession of a narcotic drug, to-wit: marijuana, on August 9, 1969; and Count IV, unlawful possession of a narcotic drug, to-wit: marijuana, on August 12, 1969; and Count V, conspiracy to sell narcotics, to-wit: marijuana, on August 9, 1969, in violation of § 833.04, Fla.Stat., F.S.A.
The prosecution was the result of the sale of marijuana to two undercover policemen on the evening of August 9 and 12, 1969, by the defendant and two others.
The defendant put into issue the question of identification. He challenged the in-court identification of the defendant by the two undercover agents. He also presented the alibi defense that he was in New York at the time of the crimes. The defendant asserts on appeal that it was reversible error for the trial court to refuse to grant his special jury instruction that the jurors must believe that the defendant had been identified as the person who sold the marijuana beyond a reasonable doubt, and the defendant relies upon Salley v United States, 122 U.S.App.D.C. 359, 353 F.2d 897 (1965).
We assume, without specifically deciding, that this error is properly before us. We find, however, that his point has no merit because of the clearly correct, comprehensive, and detailed jury instruction actually given by the trial court. It is well settled that a judgment will not be reversed for failure to give a particular charge where, on the whole, the charges as given are clear, comprehensive, and correct. Darty v. State, Fla.App.1964, 161 So.2d 864, 872.
The defendant argues as his second point that the court erred in admitting rebuttal testimony by a police officer where the state failed to disclose a list of witnesses to be offered at trial in rebuttal to discredit the defendant's alibi, contrary to Rule 1.200 Cr.PR, 33 F.S.A.
The police officer testified to inculpatory oral statements made by the defendant on August 25, 1969, when the defendant was arrested. The statements were not reduced to writing. The state offered such testimony to refute an answer given by the defendant on cross-examination...
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