Fulmore v. State

District Court of Appeal of Florida

Fulmore v. State

483 So. 2d 765, 11 Fla. L. Weekly 344, 1986 Fla. App. LEXIS 6214

CourtDistrict Court of Appeal of Florida

DecidedFebruary 5, 1986

DocketNo. 84-2551

StatusPublished

Cited by3 cases

This text of 483 So. 2d 765 (Fulmore 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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Fulmore v. State, 483 So. 2d 765, 11 Fla. L. Weekly 344, 1986 Fla. App. LEXIS 6214 (Fla. Ct. App. 1986).

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Opinion

GLICKSTEIN, Judge.

This is an appeal from a judgment and sentence following a jury’s determination that the defendant was guilty of armed robbery, shooting within an occupied building and discharging a firearm in public. We reverse and remand for new trial because two of the errors asserted by appellant have merit.

First, allowing hearsay evidence by an officer who testified that he received “certain information” which led him to place appellant’s photograph in the second photographic lineup was harmful error. Unlike the fleeting reference in Barnes v. State, 470 So.2d 851 (Fla. 1st DCA 1985), this error was carved in stone on three separate occasions, depriving the accused of his constitutional right to confrontation. See Rolle v. State, 416 So.2d 51 (Fla. 4th DCA 1982); Molina v. State, 406 So.2d 57 (Fla. 3d DCA 1981); Postell v. State, 398 So.2d 851 (Fla. 3d DCA 1981).

Second, the trial court allowed Deputy Janson to testify as a rebuttal witness, notwithstanding the absence of his name from the witness list, without conducting a Richardson hearing as requested by the defendant.

[766]*766While clearly not a basis for new trial, we call the trial court’s attention to its failure to fulfill the writing requirements of Section 39.111(6), Florida Statutes (1983).

HERSEY, C.J., and HURLEY, J., concur.

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GLICKSTEIN, Judge.

This is an appeal from a judgment and sentence following a jury’s determination that the defendant was guilty of armed robbery, shooting within an occupied building and discharging a firearm in public. We reverse and remand for new trial because two of the errors asserted by appellant have merit.

First, allowing hearsay evidence by an officer who testified that he received “certain information” which led him to place appellant’s photograph in the second photographic lineup was harmful error. Unlike the fleeting reference in Barnes v. State, 470 So.2d 851 (Fla. 1st DCA 1985), this error was carved in stone on three separate occasions, depriving the accused of his constitutional right to confrontation. See Rolle v. State, 416 So.2d 51 (Fla. 4th DCA 1982); Molina v. State, 406 So.2d 57 (Fla. 3d DCA 1981); Postell v. State, 398 So.2d 851 (Fla. 3d DCA 1981).

Second, the trial court allowed Deputy Janson to testify as a rebuttal witness, notwithstanding the absence of his name from the witness list, without conducting a Richardson hearing as requested by the defendant.

[766]*766While clearly not a basis for new trial, we call the trial court’s attention to its failure to fulfill the writing requirements of Section 39.111(6), Florida Statutes (1983).

HERSEY, C.J., and HURLEY, J., concur.

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483 So. 2d 765, 11 Fla. L. Weekly 344, 1986 Fla. App. LEXIS 6214, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fulmore-v-state-fladistctapp-1986.

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