Smart v. State

208 So. 2d 866, 1968 Fla. App. LEXIS 5846

Opinion

PER CURIAM.

The appellant was informed against, tried before the court and found and adjudged guilty of robbery and sentenced to confinement for a period of five years. The contention presented on his appeal is that the court committed reversible error in denying his motion to strike the testimony of the victim, relating to identity of the defendant, because he was picked by the victim out of a line-up at which he was not advised of a right to have counsel present, and was without counsel.

The defendant relies on United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed. 2d 1149, which espoused the proposition he contends for. The Wade case was decided by the Supreme Court of the United States on June 12, 1967, some five months after the trial in this case, which was held on January 19, 1967. The Supreme Court of the United States held that the Wade case operated prospectively and was not given retroactive application. Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199. See also Marden v. State, Fla.App.1967, 203 So.2d 638; Bradley v. State, Fla.App.1968, 206 So.2d 657, 660. Therefore, the challenged ruling of the trial court in this court in this case was not error.

Affirmed.