DENNIS LEON FRANCIS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Francis was convicted of robbery with a firearm at a convenience store. He appealed challenging the admissibility of a shotgun and confession based on an alleged misstatement in the arrest warrant affidavit. The court affirmed the conviction, finding the misstatement was innocent or negligent and not material to the warrant's validity.
The misstatement in the affidavit was innocent or negligent rather than intentional or reckless, and therefore did not void the warrant. Even had the accurate word 'tentative' been used instead of 'positive,' there would have been sufficient cause for the arrest warrant to issue. The confession and weapon admission were properly admitted.
[1] A material misstatement in an affidavit supporting a warrant voids the warrant only if the misstatement was intentional or reckless, not if it was innocent or negligent.
[2] A trial court must hold a pretrial evidentiary proceeding on allegations of material misstatements in a warrant affidavit, with deposition testimony permissible in lieu o…
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Join FLexlaw to unlock all legal intelligence“Whether a material misstatement in the supporting affidavit voids a warrant depends upon whether the misstatement was merely innocent or negligent or was intentional or reckless”
Establishes the legal standard for evaluating warrant affidavit misstatements under Franks v. Delaware
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Join FLexlaw to unlock all legal intelligenceA convenience store was robbed by a black male carrying a shotgun and wearing a stocking cap. Four witnesses were present; two positively identified F…
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MILLS, Judge.
Francis appeals his conviction for robbery with a firearm. We affirm.
A convenience store was robbed by a black male carrying a shotgun and wearing a stocking cap. He was described as having a large nose and being very dark. There were four witnesses, two clerks and two customers. One clerk and one customer could not make any identification but the others positively identified Francis in court. A shotgun seized from Francis was admitted in evidence and Detective Kearney testified to a confession made by Francis.
Francis challenges the admissibility of the gun and of the confession. Francis was arrested in his home, pursuant to a warrant. This warrant was issued upon Kearney’s affidavit. In the affidavit Kearney described the robbery, identified Francis as a suspect and stated that a witness had positively identified a photograph of Francis. In fact the witness chose Francis’ photograph from a line-up and said that it most resembled the robber. Francis argues that this misstatement renders the warrant void and since a warrant was required, Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980), the arrest was illegal. He further asserts that confession and consent to seize the weapon are fruits of the arrest and should be suppressed, Dunaway v. New York, 442 U.S. 200, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979); Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975).
Whether a material misstatement in the supporting affidavit voids a warrant depends upon whether the misstatement was merely innocent or negligent or was intentional or reckless, Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978); Mathes v. State, 375 So. 2d 1084 (Fla. 1st DCA 1979). Upon proper allegations the trial court is required to hold a pretrial. evidentiary proceeding on this issue. This was done in this case with deposi tion testimony substituting for live testimony. After reviewing the evidence and hearing argument the court below denied the motion to suppress. A finding of innocent or negligent misrepresentation is supported by the record. Furthermore had the accurate word “tentative” been substituted for “positive” in the affidavit, cf. Mathes, supra, there would have been sufficient cause for the arrest warrant to issue. The admission of the confession and weapon was not error. Francis also argues that the jury should have been instructed on robbery with a weapon, Reddick v. State, 394 So. 2d 417 (Fla.1981). Reversal on this point is useless in light of the new Rules of Criminal Procedure 3.510, see Boston v. State, 411 So. 2d 1345 (Fla. 1st DCA 1982); Burney v. State, 402 So. 2d 38 (Fla. 2d DCA 1981).
For the above reasons the judgment below is affirmed.
LARRY G. SMITH and SHAW, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Franks v. Delaware, 438 U.S. 154 (U.S. 1978)
- Payton v. New York, 445 U.S. 573 (U.S. 1980)
- Dunaway v. New York, 442 U.S. 200 (U.S. 1979)
- Brown v. Illinois, 422 U.S. 590 (U.S. 1975)
- Reddick v. State, 394 So. 2d 417 (Fla. 1981)
- Devard B. Burney v. State, 402 So. 2d 38 (Fla. 2d DCA 1981)
- Boston v. State, 411 So. 2d 1345 (Fla. 1st DCA 1982)
- Hans Peter Mathes and Robert Gerard Mass v. State, 375 So. 2d 1084 (Fla. 1st DCA 1979)