DANIEL BAILEY, APPELLANT,

v.

THE STATE OF FLORIDA, APPELLEE

Fla. 3d DCA | 1981-01-13

No. 80-235

Before HUBBART, C. J., SCHWARTZ, J., and MELVIN, WOODROW M. (Ret.), Associate Judge.

393 So. 2d 24 Florida District Court of Appeal, Third District (1981) Caution

Cited by 14 cases

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Holding

The dissenting judge would reverse the conviction and suppress evidence obtained from warrantless electronic interception.

Facts & Procedural History

The state conducted warrantless electronic interception of the defendant's private conversations with a state agent. The state also obtained lawful wa…

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Topics

Warrantless Electronic Surveillance Electronic Eavesdropping Probable Cause

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Opinion of the Court

PER CURIAM.

The appellant’s challenge to the warrant-less electronic surveillance involved in this case is rejected on the authority of Franco v. State, 376 So. 2d 1168 (Fla. 3d DCA 1979), cert. denied, 386 So. 2d 636 (Fla.1980). See, Jacobs v. State, 389 So. 2d 1054 (Fla. 3d DCA 1980); State v. Steinbrecher, 389 So. 2d 1043 (Fla. 3d DCA 1980); State v. Shaktman, 389 So. 2d 1045 (Fla. 3d DCA 1980); Trinidad v. State, 388 So. 2d 1063 (Fla. 3d DCA 1980).

The claim that the trial court erroneously declined to instruct the jury as to the maximum sentences, see, Tascano v. State, 393 § So. 2d 540 (Fla.1980), was not properly preserved for appellate review. In so holding, we follow Kelly v. State, 389 So. 2d 250 (Fla. 2d DCA 1980) which involved an identical procedural situation and which we believe to have been correctly decided. See also, e. g., Febre v. State, 158 Fla. 853, 30 So. 2d 367 (1947); Smith v. State, 378 So. 2d 117 (Fla. 4th DCA 1980); White v. State, 324 So. 2d 115 (Fla. 3d DCA 1975), cert. dismissed, 339 So. 2d 1173 (Fla.1976). The other points raised present no error and require no discussion.

Affirmed.

Dissent

HUBBART, Chief Judge

(dissenting).

I must respectfully dissent. I would reverse the judgment of conviction and sentence under review and remand the cause to the trial court with directions to suppress the fruits of the state’s warrantless electronic interception of the defendant’s highly incriminating private conversations with a state agent conducted on January 31, 1979 and February 1, 1979. I rely for this position on the legal authorities and analysis contained and stated in State v. Shaktman, 389 So. 2d 1045 (Fla. 3d DCA 1980) (Hubbart, C. J., dissenting); Franco v. State, 376 So. 2d 1168, 1170-72 (Fla. 3d DCA 1979) (Hubbart, J., dissenting).

Beyond that, I think the case noteworthy because the state did obtain several warrants to intercept electronically certain other private conversations between the state agent herein and the appellant. These warrants were based on probable cause, were in all respects lawfully issued and executed, and the fruits thereof were, accordingly, admissible in evidence at trial based on the authority of Osborn v. United States, 385 U.S. 323, 87 S.Ct. 429, 17 L.Ed.2d 394 (1966). This commendable practice illustrates how entirely practicable the warrant procedure is in cases of this nature and how utterly unnecessary it is to effective law enforcement for the police to engage in the war-rantless electronic eavesdropping which, unfortunately, was also conducted in this case. See Franco v. State, 376 So. 2d at 1172.

In view of my conclusion on the electronic eavesdropping issue, I find it unnecessary to reach the penalty instruction point raised by the appellant. In all other respects, however, I agree with the court’s rejection of appellant’s remaining points on appeal.

I would reverse and remand for a new trial.

Cases With Similar Vibessemantic neighbors from the corpus

Citator

Cited By

Rodriguez v. State, 396 So. 2d 798 (Fla. 3d DCA 1981)

…t. Maddox v. State, supra, at 38 So. 2d 58. . See, Washington v. State, 392 So. 2d 599 (Fla. 1st DCA 1981) (Wentworth, J., dissenting). . Compare the application of 3.390(d) in Kelly v. State, 389 So. 2d 250 (Fla. 2d DCA 1980) and Bailey v. State, 393 So. 2d 24 (Fla. 3d DCA 1981), to a request for an instruction on penalties, which is mandated only by subsection (a) of the same rule, and which would otherwise not be an appropriate, let alone required, subject of a jury charge. . We reject the appellee’s c…
James v. State, 393 So. 2d 1138 (Fla. 3d DCA 1981)

…nt urged by the appellant because he failed, in my view, to preserve the point for appellate review, and, accordingly, I would affirm on that basis alone. Kelly v. State, 389 So. 2d 250 (Fla. 2d DCA 1980), as adopted and followed in Bailey v. State, 393 So. 2d 24 (Fla. 3d DCA 1980); Atkinson v. State, 378 So. 2d 324 (Fla. 3d DCA 1980); White v. State, 324 So. 2d 115 (Fla. 3d DCA), cert. dismissed, 339 So. 2d 1173 (Fla.1976); Fla.R.Crim.P. 3.390(d); see Tascano v. State, 393 So. 2d 540 (Fla.1980).…
Williams v. State, 399 So. 2d 999 (Fla. 3d DCA 1981)

…quested charge” does not comply with the rule, see, e. g., York v. State, 232 So. 2d 767 (Fla. 4th DCA 1969), are thus inapposite.4 Likewise, cases in which no objection was made to the trial court’s refusal to instruct, see, e. g., Bailey v. State, 393 So. 2d 24 (Fla. 3d DCA 1981); Washington v. State, 392 So. 2d 599 (Fla. 1st DCA 1981); and Kelly v. State, 389 So. 2d 250 (Fla. 2d DCA 1980), or in which objection was made after the jury retired to deliberate, see, e. g., Bell v. State, 396 So. 2d 270 (Fla.…

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Authorities Cited (11 total)

Osborn v. United States, 385 U.S. 323 (U.S. 1966)
Febre v. State, 158 Fla. 853 (Fla. 1947)
Kelly v. State, 389 So. 2d 250 (Fla. 2d DCA 1980)
Bart Jacobs v. State, 389 So. 2d 1054 (Fla. 3d DCA 1980)
White v. State, 324 So. 2d 115 (Fla. 3d DCA 1975)
State v. Shaktman, 389 So. 2d 1045 (Fla. 3d DCA 1980)
Kellogg v. Found, 376 So. 2d 1168 (Fla. 5th DCA 1979)
Franco v. State, 376 So. 2d 1168 (Fla. 3d DCA 1979)
Smith v. State, 378 So. 2d 117 (Fla. 4th DCA 1980)
Trinidad v. State, 388 So. 2d 1063 (Fla. 3d DCA 1980)

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