Gomien v. State

172 So. 2d 511
CourtDistrict Court of Appeal of Florida
DecidedFebruary 26, 1965
Docket64-628
StatusPublished
Cited by30 cases

This text of 172 So. 2d 511 (Gomien 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.

Bluebook
Gomien v. State, 172 So. 2d 511 (Fla. Ct. App. 1965).

Opinion

172 So.2d 511 (1965)

Donald S. GOMIEN, Appellant,
v.
STATE of Florida, Appellee.

No. 64-628.

District Court of Appeal of Florida. Third District.

February 26, 1965.
Rehearing Denied March 24, 1965.

Whitman & Knott, Miami, for appellant.

Earl Faircloth, Atty. Gen., and John Smith, Asst. Atty. Gen., for appellee.

Before TILLMAN PEARSON, HORTON and HENDRY, JJ.

HENDRY, Judge.

Appellant, a former police officer of the City of Miami, was tried in the Criminal *512 Court of Record for Dade County on a two count information charging him with extortion and accepting unauthorized compensation. The defendant entered a plea of not guilty to each of the charges and waived jury trial. Upon trial, he was found not guilty on the count charging extortion and guilty on the count charging him with accepting unauthorized compensation.[1] He was adjudged guilty and sentenced for a term of one year in the State Penitentiary. The defendant appeals from this final judgment and sentence.

The evidence, as shown by the record, reveals that the defendant and a fellow police officer of the City of Miami, while acting within the scope of their employment, entered a bar, known as the Barbaran Night Club on March 15, 1964 at approximately 5:10 A.M. The defendant arrested two patrons for being drunk and the manager, Sergio Niebla, for serving beer after hours. Niebla, upon being informed of their arrest, telephoned his employer, Kay Smith, and apprised him of the arrests. Smith promptly went to the Barbaran, where he found the officers and the parties they had placed under arrest. He discussed the matter with the officer who had accompanied the defendant on his mission. He also made a telephone call to a detective at the police station and discussed the arrest. Niebla testified that the defendant had asked him for $150, and that he had promised it to the defendant. After these conversations, the defendant and his fellow officer informed these people that they were not under arrest.

Nothing further was heard from the defendant until one week later when he went back alone to the Barbaran Club at between 2:00 and 2:30 A.M., dressed in his police uniform. He was asked by Niebla what he wanted. His answer was, "I come for my money." Niebla gave him One Hundred Dollars in Twenty Dollar bills which had been marked and given to him by two undercover investigating officers of the Police Department.

Further, in anticipation of the defendant's visit, the undercover police officers set up a tape recording machine in the premises, and arranged with Niebla to have the transmitter and microphone concealed on Niebla's person. He was instructed how to turn the transmitter on so as to record the conversation that was to take place at the time the money was paid over to the defendant. One Hundred Dollars in Twenty Dollar bills was given to the defendant outside the club only a few feet from where the recording machine and the undercover officers were concealed. The tape recording was made of the conversation between Niebla and the defendant. As soon as the defendant had received the money from Niebla, the undercover police officers asked him for it. The defendant put his hand in his pocket, got the money and surrendered it to the officers. The tape recording was preserved and used as evidence in the trial of the defendant. The following is a transcript of such recording of the conversation between the defendant and the witness, Niebla, which was admitted in evidence:

"MR. NIEBLA: `My boss give me the money to give this to you. I told you I give you the money Monday. I got *513 no hundred and fifty dollars. I got a hundred dollars. That's all.'
"SGT. GOMIEN: `A hundred dollars?'
"MR. NIEBLA: `A hundred dollars. I got it now. I give you one hundred dollars. I no have no more trouble with you, correct?'
"SGT. GOMIEN: `How about the Sergeant? He wants $150.'
"MR. NIEBLA: `How much want the Sergeant?'
"SGT. GOMIEN: `Right now he gets the whole thing. I don't get nothing. He is the boss, not me. If he gives me $25 I am lucky. Maybe he will, maybe he won't. I know that if you do, you get no more trouble.'
"MR. NIEBLA: `But I no have hundred and fifty dollars. I have hundred dollars. That's all. I don't know why I give the money to you.'
"SGT. GOMIEN: `So we don't press the charges, that's why. He was going to make the arrest. It's up to him.'
"MR. NIEBLA: `I give you one hundred dollars, all right? No more trouble with you and the Sergeant?'
"SGT. GOMIEN: `You'll have no trouble with me. He told me to come here. You know me. I never came here before, did I?'
"MR. NIEBLA: `Yes.'
"SGT. GOMIEN: `I never came here except to say "Hello".
"MR. NIEBLA: `Yes.'
"SGT. GOMIEN: `That night last week, he was out here. He said, "What goes on here?" I said, "I don't know. No trouble." He says, "Let's go inside."
I told him the same thing.'
"MR. NIEBLA: `It's okay.'
"SGT. GOMIEN: `Why don't you give him the hundred dollars and give him the fifty dollars later?'
"MR. NIEBLA: `If you leave me alone, I give you a hundred dollars. I can't give you more. I no have more money.'
"SGT. GOMIEN: `Give the fifty dollars later, next week, and the Sergeant won't be back.'
"MR. NIEBLA: `I no want no more trouble with you and the Sergeant.'
"SGT. GOMIEN: `You will have no trouble with me anyway, never did, right? You give me the hundred dollars. I'll tell him you will give the fifty dollars next week.'
"MR. NIEBLA: `Tell him I give you fifty dollars next week.'
"SGT. GOMIEN: `And a hundred dollars now.'
"MR. NIEBLA: `A hundred dollars now, and I don't want no more trouble with you and the Sergeant. I have my business, my job. I no do nothing. I have no trouble. I work in here every night. I give it to you. I no have the money.'
"SGT. GOMIEN: `I know that.'
"MR. NIEBLA: `Okay. I no want no trouble with you and the Sergeant.'
"SGT. GOMIEN: `Right. I'll see you next week. Don't let anybody see you do this. Come on outside.'
"MR. NIEBLA: `Twenty, forty, sixty, eighty, a hundred.'
"SGT. GOMIEN: `Whose car is this?'
"MR. NIEBLA: `Oh, this car is Mr. Kay. Okay, take the money.'
*514 "SGT. GOMIEN: `Who owns that car?'
"Mr. NIEBLA: `That car is customer.'
"SGT. GOMIEN: `You know him?'
"MR. NIEBLA: `Yes, I know him. He is a customer.'
"SGT. GOMIEN: `Okay.'
"MR. NIEBLA: `Okay. Next week I give him another fifty dollars.'
"SGT. GOMIEN: `Right.'
"MR. NIEBLA: `You come next week, okay?'
"SGT. GOMIEN: `Okay.'
"MR. NIEBLA: `No more trouble?'
"SGT. GOMIEN: `Okay.'
"MR. NIEBLA: `Okay.'"

Appellant asks reversal on two grounds.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Aldrin Gomez-Martinez v. the State of Florida
District Court of Appeal of Florida, 2025
Montano v. State
846 So. 2d 677 (District Court of Appeal of Florida, 2003)
Harris v. State
619 So. 2d 340 (District Court of Appeal of Florida, 1993)
Barguez v. State
534 So. 2d 816 (District Court of Appeal of Florida, 1988)
Herrera v. State
532 So. 2d 54 (District Court of Appeal of Florida, 1988)
Holland v. State
528 So. 2d 36 (District Court of Appeal of Florida, 1988)
Loren v. State
518 So. 2d 342 (District Court of Appeal of Florida, 1987)
Rodriguez v. State
433 So. 2d 1273 (District Court of Appeal of Florida, 1983)
Springer v. State
429 So. 2d 808 (District Court of Appeal of Florida, 1983)
Golden v. State
429 So. 2d 45 (District Court of Appeal of Florida, 1983)
State v. Steinbrecher
409 So. 2d 510 (District Court of Appeal of Florida, 1982)
State v. Harris
286 S.E.2d 251 (West Virginia Supreme Court, 1982)
Odom v. State
403 So. 2d 936 (Supreme Court of Florida, 1981)
Silber v. State
398 So. 2d 918 (District Court of Appeal of Florida, 1981)
Jacobs v. State
389 So. 2d 1054 (District Court of Appeal of Florida, 1980)
State v. Scott
385 So. 2d 1044 (District Court of Appeal of Florida, 1980)
Food Fair, Inc. v. Anderson
382 So. 2d 150 (District Court of Appeal of Florida, 1980)
Crespo v. State
350 So. 2d 507 (District Court of Appeal of Florida, 1977)
Lewis v. State
335 So. 2d 336 (District Court of Appeal of Florida, 1976)
Raffield v. State
333 So. 2d 534 (District Court of Appeal of Florida, 1976)

Cite This Page — Counsel Stack

Bluebook (online)
172 So. 2d 511, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gomien-v-state-fladistctapp-1965.