State v. Mitchell

District Court of Appeal of Florida

State v. Mitchell

445 So. 2d 405, 1984 Fla. App. LEXIS 11843

CourtDistrict Court of Appeal of Florida

DecidedFebruary 16, 1984

DocketNo. 83-1287

StatusPublished

Cited by3 cases

This text of 445 So. 2d 405 (State v. Mitchell) 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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State v. Mitchell, 445 So. 2d 405, 1984 Fla. App. LEXIS 11843 (Fla. Ct. App. 1984).

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Opinion

PER CURIAM.

In the exercise of our discretionary certiorari right of review¹ we treat the State’s notice of appeal in this case as a petition for writ of certiorari.²

We find that the trial court departed from the essential requirements "of law when it excluded from evidence the identification testimony of the State’s only two eyewitnesses by ruling as a matter of law on the facts of this case that their testimony had been irretrievably tainted by unnecessarily suggestive out-of-court police identification procedures. See Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972); Grant v. State, 390 So.2d 341 (Fla.1980); State v. Mendez, 423 So.2d 621 (Fla. 4th DCA 1982); Lecoin v. State, 418 So.2d 336 (Fla. 3d DCA 1982); Baxter v. State, 355 So.2d 1234 (Fla. 2d DCA 1978), cert. denied, 365 So.2d 709 (Fla.1978); State v. Ciongoli, 313 So.2d 41 (Fla. 4th DCA 1975), cert. dismissed, 337 So.2d 780 (Fla.1976). The respondent may submit and argue to the jury the factual matters of which he complains for the jury to consider in weighing the identification testimony.

The order of the trial court suppressing the identification testimony of the witnesses Kerley and Allen is

QUASHED.

FRANK D. UPCHURCH, Jr., SHARP and COWART, JJ., concur.

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PER CURIAM.

In the exercise of our discretionary certiorari right of review¹ we treat the State’s notice of appeal in this case as a petition for writ of certiorari.²

We find that the trial court departed from the essential requirements "of law when it excluded from evidence the identification testimony of the State’s only two eyewitnesses by ruling as a matter of law on the facts of this case that their testimony had been irretrievably tainted by unnecessarily suggestive out-of-court police identification procedures. See Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972); Grant v. State, 390 So.2d 341 (Fla.1980); State v. Mendez, 423 So.2d 621 (Fla. 4th DCA 1982); Lecoin v. State, 418 So.2d 336 (Fla. 3d DCA 1982); Baxter v. State, 355 So.2d 1234 (Fla. 2d DCA 1978), cert. denied, 365 So.2d 709 (Fla.1978); State v. Ciongoli, 313 So.2d 41 (Fla. 4th DCA 1975), cert. dismissed, 337 So.2d 780 (Fla.1976). The respondent may submit and argue to the jury the factual matters of which he complains for the jury to consider in weighing the identification testimony.

The order of the trial court suppressing the identification testimony of the witnesses Kerley and Allen is

QUASHED.

FRANK D. UPCHURCH, Jr., SHARP and COWART, JJ., concur.

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445 So. 2d 405, 1984 Fla. App. LEXIS 11843, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-mitchell-fladistctapp-1984.

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