State v. Davis

290 So. 2d 30
CourtSupreme Court of Florida
DecidedFebruary 13, 1974
Docket43874
StatusPublished
Cited by24 cases

This text of 290 So. 2d 30 (State v. Davis) is published on Counsel Stack Legal Research, covering Supreme Court of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Davis, 290 So. 2d 30 (Fla. 1974).

Opinion

290 So.2d 30 (1974)

STATE of Florida, Petitioner,
v.
Cullen DAVIS, Respondent.

No. 43874.

Supreme Court of Florida.

February 13, 1974.

Robert L. Shevin, Atty. Gen., and David Luther Woodward and Richard W. Prospect, Asst. Attys. Gen., for petitioner.

James A. Gardner, Public Defender, and Thomas A. Capelle and Charles H. Livingston, Asst. Public Defenders, for respondent.

BOYD, Justice.

This cause is before us on petition for writ of certiorari to review the decision of the District Court of Appeal, Second District, reported at 276 So.2d 846. Our jurisdiction is based on conflict between the decision sought to be reviewed and, inter alia, Tracey v. State[1] and Redditt v. State.[2]

Respondent was convicted of robbery in the Court of Record, Hillsborough County. The Second District reversed and remanded for a new trial on the basis that the admission of evidence of another crime violated *31 the rule of Williams v. State.[3] The State has urged that the District Court erred because the Williams rule issue was not raised in appellant's brief, although it was assigned as error in the Assignments of Error.

The appellant's brief, an "Anders" brief, filed on the authority of Anders v. California,[4] concluded:

"The evidence presented, even excluding the Williams rule testimony, were it inadmissible, is still more than sufficient to sustain a verdict of guilty."

In its first opinion on the matter, the Second District noted that:

"Appellant was informed against for the crime of robbery of Miss Virginia Brown, an employee of Pioneer Cleaners. The jury convicted him and he was sentenced to ten years in prison. Neither the public defender's nor the State's brief was of any assistance to the court in this appeal. The public defender filed a brief commonly referred to as an `Anders' brief, alleging that they could find no arguable support for the appeal. The State agreed with the public defender."
* * * * * *
"This court has rather liberally construed Williams v. State, supra, and has been called upon numerous times to interpret the principles laid down in that case. We reiterate here what we believe this case stands for:
`[E]vidence revealing other crimes is admissible if it casts light upon the character of the act under investigation by showing motive, intent, absence of mistake, common scheme, identity or a system or general pattern of criminality so that the evidence of the prior offenses would have a relevant or a material bearing on some essential aspect of the offense being tried.' Williams v. State, 110 So.2d at 662.
"From the record it appears that the State adduced sufficient proof that the appellant robbed Miss Brown. The State also proved that Mingo's Food Store had been robbed. Although there was some conflict as to the testimony regarding identification, the jury could certainly have believed that the appellant robbed Mingo's. But these are two separate and distinct crimes. One is not relevant. The evidence of one of the offenses would have no relevancy or material bearing on an essential aspect of the other as required by Williams. One does not go to prove intent, common scheme, identity and certainly no general pattern as required by Williams. These are two separate and distinct crimes. The State went in for the over-kill and in doing so committed reversible error.
"For these reasons we reverse and remand for a new trial."[5]

Upon petition for rehearing, which had been sought by the State on the grounds that the issue was not raised in appellant's brief, although it did appear in the assignment of error, the Second District noted:

"Technically, the Attorney General is right. We did consider a point not raised by the appellant in his brief. In fact, the former Public Defender for the Twelfth Circuit did not raise any point in his brief. We deny rehearing.
"In the event the State wishes to allege that we are in conflict with Proctor v. Hart, 1854, 5 Fla. 465, and McNally v. State ex rel. Bond Realization Corp., 1933, 112 Fla. 434, 150 So. 751, and seek certiorari, it may help to describe the procedural posture of the matter as we see it. We did by-pass the procedures a bit by recognizing the obvious error in this record. The State, in its petition for rehearing, makes no charge that we were wrong on the law or that there is *32 any argument that can be made in support of this judgment. ..."
* * * * * *
"If perchance the State's insistence on this technicality shall culminate in the reversal of our decision, Davis should file in this court a petition for habeas corpus pursuant to Baggett v. Wainwright, Fla. 1969, 229 So.2d 239, seeking delayed appellate review. Certainly the performance he got from his appointed, State-paid counsel is as close to no review as is possible to get. Should that expedient fail, Davis' case might conceivably wind up in federal court, where he surely could maintain the contention that he has been deprived of due process, as in Anders v. California, 1967, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493. But sooner or later, Davis is going to get a fair trial. From the standpoint of the public as well as Davis, it ought to be sooner.
"We have emphasized lately that convictions ought not be reversed on account of non-prejudicial technicality. In effect, what we are saying in Judge Liles' opinion and in this denial of rehearing is that patently invalid convictions ought not be affirmed on the basis of technicalities which cannot in the end thwart effective appellate review once the appellant gets the due process to which he is entitled."[6]

On the merits, the Second District's opinion on rehearing recognized, as was asserted in appellant's brief, that the other evidence presented at the trial was more than sufficient to convict, and that the Williams rule testimony added nothing to the State's case. However, it was found that the evidence was wrongfully admitted, and due to the fact that two witnesses appeared, taking 25 pages of testimony, the evidence became a "feature" of the trial. On this basis, the District Court reversed on the authority of Green v. State,[7] which excluded evidence of a prior crime, although the prior crime was material, because the prior crime became "a feature instead of an incident" of the trial.

The State has urged conflict with numerous cases. One of these is Tracey v. State,[8] where it was held that:

"Failure to assign a question as error, or if assigned, failure to argue it in the brief filed here precludes that a consideration of the question, unless the question constitutes fundamental error."[9]

Another representative case cited by the State is Redditt v. State,[10] which, in discussing the assignments of error, noted that Florida law provides that:

"Such assignments of error as are not argued will be deemed abandoned."[11]

Thus, before this Court, two issues arise in this proceeding. The first of these is the threshold question of whether the Second District properly considered the Williams

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