Everhart v. State

District Court of Appeal of Florida

Everhart v. State

592 So. 2d 352, 1992 Fla. App. LEXIS 153, 1992 WL 4097

CourtDistrict Court of Appeal of Florida

DecidedJanuary 14, 1992

DocketNo. 90-2776

StatusPublished

Cited by2 cases

This text of 592 So. 2d 352 (Everhart v. State) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Everhart v. State, 592 So. 2d 352, 1992 Fla. App. LEXIS 153, 1992 WL 4097 (Fla. Ct. App. 1992).

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Opinion

PER CURIAM.

We agree with appellant’s claim of error in his conviction and sentence for first-degree murder.

In the instant case, the witness upon whose identification the state relied, in no way identified the defendant to the jury; rather, it was only a police officer’s recitation of that witness’ out-of-court statements which purported to establish that the witness had earlier identified the defendant’s picture. Thus, there was no sworn testimony before the jury in which the defendant was identified as the perpetrator of the crime.

Where the inescapable inference from testimony is that a non-testifying witness has furnished police with evidence of defendant’s guilt, such testimony is hearsay and defendant’s right of confrontation is defeated notwithstanding that actual statements made by the non-testifying witness are not repeated. Postell v. State, 398 So.2d 851 (Fla. 3d DCA), review denied, 411 So.2d 384 (Fla.1981). It is a fundamental principle of criminal law that the prosecution, in presenting a prima facie case, must establish beyond a reasonable doubt the identity of the accused as perpetrator of the charged offense. Ponsell v. State, 393 So.2d 635, 636 (Fla. 4th DCA 1981); Weinshenker v. State, 223 So.2d 561, 563 (Fla. 3d DCA), cert. denied, 225 So.2d 918 (Fla.), cert. denied, 396 U.S. 973, 90 S.Ct. 462, 24 L.Ed.2d 441 (1969); see Huggins v. State, 453 So.2d 835 (Fla. 5th DCA 1984), review denied, 456 So.2d 1182 (Fla.1984). Uncorroborated hearsay statements cannot be used as the sole evidence to convict as the state attempted in the instant case. See Bell v. State, 569 So.2d 1322 (Fla. 1st DCA 1990), review denied, 581 So.2d 1310 (Fla.1991).

Accordingly, having examined the record together with the state’s confession of error, we reverse the judgment of the trial court with directions to vacate the sentence and discharge the defendant in this cause.

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PER CURIAM.

We agree with appellant’s claim of error in his conviction and sentence for first-degree murder.

In the instant case, the witness upon whose identification the state relied, in no way identified the defendant to the jury; rather, it was only a police officer’s recitation of that witness’ out-of-court statements which purported to establish that the witness had earlier identified the defendant’s picture. Thus, there was no sworn testimony before the jury in which the defendant was identified as the perpetrator of the crime.

Where the inescapable inference from testimony is that a non-testifying witness has furnished police with evidence of defendant’s guilt, such testimony is hearsay and defendant’s right of confrontation is defeated notwithstanding that actual statements made by the non-testifying witness are not repeated. Postell v. State, 398 So.2d 851 (Fla. 3d DCA), review denied, 411 So.2d 384 (Fla.1981). It is a fundamental principle of criminal law that the prosecution, in presenting a prima facie case, must establish beyond a reasonable doubt the identity of the accused as perpetrator of the charged offense. Ponsell v. State, 393 So.2d 635, 636 (Fla. 4th DCA 1981); Weinshenker v. State, 223 So.2d 561, 563 (Fla. 3d DCA), cert. denied, 225 So.2d 918 (Fla.), cert. denied, 396 U.S. 973, 90 S.Ct. 462, 24 L.Ed.2d 441 (1969); see Huggins v. State, 453 So.2d 835 (Fla. 5th DCA 1984), review denied, 456 So.2d 1182 (Fla.1984). Uncorroborated hearsay statements cannot be used as the sole evidence to convict as the state attempted in the instant case. See Bell v. State, 569 So.2d 1322 (Fla. 1st DCA 1990), review denied, 581 So.2d 1310 (Fla.1991).

Accordingly, having examined the record together with the state’s confession of error, we reverse the judgment of the trial court with directions to vacate the sentence and discharge the defendant in this cause.

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592 So. 2d 352, 1992 Fla. App. LEXIS 153, 1992 WL 4097, Counsel Stack Legal Research, https://law.counselstack.com/opinion/everhart-v-state-fladistctapp-1992.

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