STATE OF FLORIDA, APPELLANT,
v.
ANTHONY MENDEZ, APPELLEE
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The State appealed a trial court's order suppressing both pre-trial photographic lineup identification and in-court identification in an armed robbery case. The appellate court affirmed suppression of the photographic identification as impermissibly suggestive, but reversed the suppression of in-court identification, holding that the State should have the opportunity to prove by clear and convincing evidence that the in-court identification was independent of the tainted lineup.
The court affirmed suppression of the pre-trial photographic identification as impermissibly suggestive, but reversed suppression of the in-court identification. The court held that the State should be given the opportunity to prove by clear and convincing evidence that the in-court identification was based on an independent basis rather than tainted by the improper photographic lineup.
[1] An order suppressing an in-court identification following an impermissibly suggestive pre-trial identification is appealable by writ of certiorari when it violates the es…
[2] A photographic array is impermissibly suggestive when it creates a substantial likelihood of irreparable mistaken identification.
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Join FLexlaw to unlock all legal intelligence“When a line-up is shown to be improper, a presumption arises that the in-court identification is tainted. The presumption is rebutted upon a showing by clear and convincing evidence that the in-court identification is grounded upon an independent basis.”
Establishes the legal standard for challenging in-court identification following a tainted pre-trial lineup.
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Join FLexlaw to unlock all legal intelligenceMendez was charged with armed robbery of two boys (ages 10 and 13). The 13-year-old was robbed at gunpoint of his pellet gun by one of two males in a …
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WALDEN, Judge.
Mendez, appellee, was charged with armed robbery. His motion to suppress pre-trial and in-court identification was granted. The State appeals. The order being non-appealable as a matter of right, we elect to treat the State’s appeal as a petition for writ of certiorari because the order in question violates the essential requirements of precedential law. State v. Wilcox, 351 So. 2d 89 (Fla. 2d DCA 1977). We approve the order as to the pre-trial identification, quash the order as to the in-court identification, and remand with directions.
The victims were 10 and 13 year old boys. The 13 year old was robbed at gun point of his pellet gun and the 10 year old was a witness. Perpetrators were two males in a vehicle, one of whom was Mendez. There was some confusion on the part of the boys as to the person who pointed the gun, he being the passenger. The boys finally settled on Mendez after a photographic lineup. The trial court correctly found that the photographic array was impermissibly suggestive and correctly suppressed that identification. However, the Court went further and suppressed the upcoming effort at in-court identification.
When a line-up is shown to be improper, a presumption arises that the in-court identification is tainted. The presumption is rebutted upon a showing by clear and convincing evidence that the in-court identification is grounded upon an independent basis. Cribbs v. State, 297 So. 2d 335, 336 (Fla. 2d DCA 1974), cert. denied, 303 So. 2d 335 (Fla.1974).
The in-court identification must be prohibited only if the pre-trial procedure “gives rise to a very substantial likelihood of irreparable mistaken identification.” State v. Sepulvado, 362 So. 2d 324, 327 (Fla. 2d DCA 1978), cert. denied, 368 So. 2d 1374 (Fla.1979). The totality of the circumstances must be viewed in determining whether the in-court identification was independent of the photographic identification. State v. Sepulvado, supra, at 327.
The facts of the case at bar clearly show that the boys got a good look at the passenger of the car who was only four or five feet away. The passenger was also viewed during daylight hours. From these facts it is likely or possible that the in-court identification could be based on events independent of the impermissibly suggestive photographic line-up.
We hold that the State should be allowed the opportunity to prove by clear and convincing evidence that the in-court identification was made independent of the improper photographic line-up. Cribbs v. State, supra. We express no opinion as to whether such effort will or will not be successful and leave such assessment totally in the hands of the trial court. Affirmed in part; quashed in part; and remanded for further proceedings consistent herewith.
HERSEY and HURLEY, JJ., concur.
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State v. Guerra, 455 So. 2d 1046 (Fla. 3d DCA 1984)…rrupting effect of the suggestive identification itself”). See also Grant v. State, 390 So. 2d 341 (Fla.1980); State v. Walker, 429 So. 2d 1301 (Fla. 4th DCA 1983) (identification suppressed; confrontation impermissibly suggestive); State v. Mendez, 423 So. 2d 621, 622 (Fla. 4th DCA 1982) (State must prove by clear and convincing evidence that the in-court identification was made independent of the improper photographic lineup); Lauramore v. State, 422 So. 2d 896 (Fla. 1st DCA 1982), pet. for rev. denied, 426…
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State v. Skolar, 692 So. 2d 309 (Fla. 5th DCA 1997)…IS and GRIFFIN, JJ., concur. . This is a nonappealable, nonfinal order which we elect to treat as a petition for certiorari because it violates the essential requirements of law. Carter v. State, 608 So. 2d 562 (Fla. 1st DCA 1992); State v. Mendez, 423 So. 2d 621 (Fla. 4th DCA 1982); State v. Wilcox, 351 So. 2d 89 (Fla. 2d DCA 1977). See also State v. Barnes, 280 So. 2d 46 (Fla. 2d DCA 1973) (decided prior to Rule 3.190(j)). A district court of appeal can exercise certiorari review over a nonfinal pretrial o…
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State v. Houston, 616 So. 2d 595 (Fla. 4th DCA 1993)…the motion for rehearing. The State has filed a notice of appeal from a decision to suppress identification [*596] testimony. We treat the notice as a petition for certiorari. See State v. Keel, 557 So. 2d 907 (Fla. 1st DCA1990); State v. Mendez, 423 So. 2d 621 (Fla. 4th DCA1982). After hearing testimony from the victim of a robbery and officers who investigated the incident, the trial court granted a defense motion to suppress the victim’s testimony that defendant was the person who robbed him. The cour…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. Wilcox, 351 So. 2d 89 (Fla. 2d DCA 1977)
- State v. Sepulvado, 362 So. 2d 324 (Fla. 2d DCA 1978)
- Howe v. S. Broward Hosp. Dist., 362 So. 2d 324 (Fla. 4th DCA 1978)
- Blue v. Beahrs, 297 So. 2d 335 (Fla. 1st DCA 1974)
- Cribbs v. State, 297 So. 2d 335 (Fla. 2d DCA 1974)
- State v. Cribbs, 303 So. 2d 335 (Fla. 1974)