WALTER J. KANE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE

Fla. 4th DCA | 1982-12-15
No. 82-289
HERSEY, J., concurs., LETTS, C.J., specially concurs with opinion., ANSTEAD, J., dissents with opinion.
425 So. 2d 73 Florida District Court of Appeal, Fourth District (1982) Caution
Cited by 12 cases
Topics
Common Scheme Or Plan

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Opinion of the Court
PER CURIAM.

PER CURIAM.

AFFIRMED.

HERSEY, J., concurs.

LETTS, C.J., specially concurs with opinion.

ANSTEAD, J., dissents with opinion.

Concurrence
LETTS, Chief Judge,

LETTS, Chief Judge,

specially concurring:

This is another one of those extraordinary cases involving lewd assault upon young children, in this instance two brothers. We commented in Espey v. State, 407 So. 2d 300, 302 (Fla. 4th DCA 1981) about how difficult it is to prove deviant sex acts upon minors, when the adult denies them, and reiterated that the testimony about collateral acts must be relevant to intent and a common scheme or plan. In the instant case, the victim and his brother were both approached in the defendant’s home and were both asked to lie on their stomachs and the defendant simulated sexual intercourse from behind while he and the boys were clothed. In my view, these acts have the kind of “special character ... so unusual as to point to the defendant.” Drake v. State, 400 So. 2d 1217,1219 (Fla.1982). Accordingly, the collateral evidence is indeed relevant under the existing case law laid down by our Supreme Court in Williams v. State, 110 So. 2d 654 (Fla.1959), cert. denied, 361 U.S. 847, 80 S.Ct. 102, 4 L.Ed.2d 86 (1959).

This is not to say that I am happy with the Williams Rule exception. Indeed, I expressed my discontent with it in Espey. Nonetheless, it is the law and I would point out that the Third District followed it in the Sias case cited by Judge Anstead.

Dissent
ANSTEAD, Judge,

ANSTEAD, Judge,

dissenting:

Applying the reasoning of the Supreme Court in Coler v. State, 418 So. 2d 238 (Fla.1982), and the Third District in Sias v. State, 416 So. 2d 1213 (Fla. 3d DCA 1982), I would hold that the trial court erred in admitting evidence of prior acts of misconduct by the appellant and reverse for a new trial. In addition, it is clear that appellant’s past misconduct, rather than the episode for which he was tried, became the focus of the trial, and the prejudicial impact of such evidence far outweighed any probative value as to the pending charge. Straight v. State, 397 So. 2d 903 (Fla.1981). In short, the appellant was tried for his past misconduct rather than the offense charged.

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