LARRY L. WHITE, A/K/A LARRY LEON HIGDON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Larry White was convicted of burglary of a dwelling for breaking into a residence in Fort Lauderdale. The appellate court affirmed the conviction but reversed the judgment to correct the written verdict to accurately reflect the jury's finding of guilt for burglary of a structure (dwelling) rather than the general charge of burglary.
A lay witness is competent to testify to observations concerning shoeprints without expert qualification; the credence and weight given to such testimony is for the jury. The conviction is affirmed but the written judgment must be corrected to conform to the jury verdict and oral adjudication finding guilt specifically of burglary of a structure (dwelling).
[1] A lay witness is competent to testify to their observations concerning shoeprints.
[2] The credence and weight to be given to a lay witness's testimony concerning shoeprints is for the jury.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“A lay witness is competent to testify to his observations concerning shoeprints.”
Establishes the admissibility of lay witness testimony regarding footprint observations without expert qualification.
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Join FLexlaw to unlock all legal intelligenceOn January 5, 1977, the Ramsey residence in Fort Lauderdale was burglarized through a broken front window while the owners were absent. When police ar…
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DOWNEY, Chief Judge.
Appellant seeks reversal of a conviction of burglary of a structure and sentence to confinement in the Florida State Prison for a term of fifteen years.
The appellee does not take issue with the facts of the case as recited in appellant’s brief. Thus, we repeat appellant’s Statement of the Facts: “The residence of Doris and Charles Ramsey, 646 S.W. 5th Avenue, Fort Lauderdale, was burglarized on January 5, 1977. Entrance was gained through a front window which had been broken out while the Ram-seys were absent. When Ms. Ramsey returned home, the house was in disarray— many objects had been moved around. She heard a noise and left to call the police. They arrived soon afterwards but found no one inside. They did find a Kool cigarette butt lying outside or inside glass doors leading to a screened-in porch. Neither the Ramseys nor any of their houseguests smoked.
“Ben Langley, one of the officers who responded to the burglary first saw Appellant walking west on Southwest 4th Avenue and 6th Street. After arriving at the crime scene, he looked around and saw Appellant walking south on 5th Avenue toward him. He stopped at a car parked about one hundred feet (100') from the house and began working on its engine. On being questioned, Appellant said he was returning from his job at Mackey Airlines and his car broke down. The police tried starting the car and were successful. The engine was then turned off. Appellant smoked Kool cigarettes.
“An employee of Mackey Airlines denied that Appellant worked there at the time in question.
“Appellant voluntarily went to the police station to enable fingerprints to be taken. A fingerprint found on the inside window sill of the Ramsey residence matched Appellant’s. Other prints taken from Ramsey property which had been moved within the house did not match Appellant’s.
“At the scene, a footprint was discovered near the screened porch. Over objection, Officer Langley was allowed to testify as to his observations regarding these prints and prints left by Appellant’s shoes.” (Citations to transcript omitted.)
Appellant denied involvement in the burglary and stated that he had just finished repairing his car when the police stopped him. He stated further that the police took him back to the window of the burglarized house and when pushed he grabbed the window sill to keep from falling.
Appellant contends the trial court erred in allowing the officer to describe the footprint found at the scene and the shoes appellant was wearing at the time of his apprehension. He also asserts the sentence imposed was excessive.
Officer Langley testified over defense objection that the footprint found at the rear of the house in question was size 10, smooth, without printed matter and had a two inch heel. He then described appellant’s shoes as a size 10, smooth, without any writing on it, and a two inch heel. Although Langley was not qualified as an expert in footprint analysis, his testimony was admissible. A lay witness is competent to testify to his observations concerning shoeprints. Irvin v. State, 66 So. 2d 288 (Fla.1953), cert. denied 346 U.S. 927, 74 S.Ct. 316, 98 L.Ed. 419 (1954); Alford v. State, 47 Fla. 1, 36 So. 436 (1904). The credence and weight to be given to such testimony is for the jury. Peacock v. State, 160 So. 2d 541 (Fla. 1st DCA 1964), cert. denied 381 U.S. 916, 85 S.Ct. 1541, 14 L.Ed.2d 436 (1965). Thus appellant’s first point has no merit.
Appellant was charged with burglary of a dwelling; the verdict found appellant “guilty of burglary of a structure, to wit: a dwelling house” and the judge in open court so adjudicated appellant. However, the judgment, when reduced to writing, simply stated that appellant was “tried and found guilty of burglary.”
Accordingly, the conviction is affirmed, but the judgment is reversed and remanded with directions to correct the judgment so as to conform to the jury verdict and the court’s oral adjudication of guilt. Simmons v. State, 369 So. 2d 609 (Fla. 1st DCA 1978). Appellant need not be present at this amendment of the judgment.
AFFIRMED IN PART; REVERSED IN PART, with directions.
ANSTEAD, J., concurs.
CROSS, SPENCER C., Associate Judge, dissents without opinion.
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Jones v. State, 440 So. 2d 570 (Fla. 1983)…In addition we detect no evidence indicating that the admission of Officer Mun-dy’s testimony invaded the province of the jury. The credence and weight to be given to such testimony remained with the jury. Peacock, 160 So. 2d at 543; White v. State, 375 So. 2d 622 (Fla. 4th DCA 1979). Absent an obvious showing of error, this Court should not tamper with a trial judge’s determination of admissibility. Buchman v. Seaboard Coast Line, 381 So. 2d 229, 230 (Fla.1980). After review of the record we find no such rea…
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Gerald v. State, 605 So. 2d 180 (Fla. 3d DCA 1992)…IAM. Affirmed. Magill v. State, 386 So. 2d 1188 (Fla.1980), cert. denied, 450 U.S. 927, 101 S.Ct. 1384, 67 L.Ed.2d 359 (1981); Irvin v. State, 66 So. 2d 288 (Fla.1953), cert. denied, 346 U.S. 927, 74 S.Ct. 316, 98 L.Ed. 419 (1954); White v. State, 375 So. 2d 622 (Fla.4th DCA 1979).…
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Giancarlo Fernandez v. State, 8 So. 3d 491 (Fla. 4th DCA 2009)…ness to provide expert testimony regarding a shoe print left at the scene — we affirm because established Florida law has determined that such testimony may be presented by a lay witness. See Irvin v. State, 66 So. 2d 288 (Fla.1953); White v. State, 375 So. 2d 622 (Fla. 4th DCA 1979.) POLEN, HAZOURI and CIKLIN, JJ., concur.…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Alford v. State, 47 Fla. 1 (Fla. 1904)
- Irvin v. State, 66 So. 2d 288 (Fla. 1953)
- Peacock v. State, 160 So. 2d 541 (Fla. 1st DCA 1964)
- Peoples v. United States, 381 U.S. 916 (U.S. 1965)
- Lepiscopo v. MacGrath, 381 U.S. 916 (U.S. 1965)
- Irvin v. Florida, 346 U.S. 927 (U.S. 1954)
- Orr v. Illinois, 346 U.S. 927 (U.S. 1954)
- Simmons v. State, 369 So. 2d 609 (Fla. 1st DCA 1978)