A.T., A JUVENILE, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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The court held that while the admission of the victim's prior identification testimony was proper, the evidence was insufficient to support a theft conviction.
[1] A prior extrajudicial identification is admissible as substantive evidence, even if the identifier lacks present memory of the identification or the underlying events.
[2] Evidence is insufficient to support a conviction when it fails to establish the defendant's guilt beyond a reasonable doubt.
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Join FLexlaw to unlock all legal intelligenceA.T. was a passenger on a stolen motorcycle stopped by police. The victim, Pedro Borges, initially identified A.T. as someone seen near his house earl…
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PER CURIAM.
A.T. appeals his conviction of theft and subsequent adjudication of delinquency. Pedro Borges’ grandson owned a motorcycle which was kept in Pedro’s garage. On the morning of May 30,1983, some children were walking back and forth in front of Pedro’s house. Pedro left the house about noon. When Pedro returned an hour later he discovered that his grandson’s motorcycle was missing. Pedro reported this to the police. Later that afternoon Officer Moore stopped two youths on a motorcycle because the passenger, A.T., had no helmet. The driver had no driver’s license or vehicle registration. When Officer Moore inquired, the driver said a friend loaned him the motorcycle. According to Officer Moore, A.T. concurred with this statement by nodding his head or mumbling yes.
Pedro Borges saw A.T. in the police car after this incident. Officer Moore testified at trial that on May 30th, Pedro had positively identified A.T. as one of the children who had been walking past his house that morning. At trial Pedro testified that he had neither the past nor present ability to identify A.T., stating that he was not “on watch” that day and at most could only state that A.T. was about the same size as the children who were around the house. Pedro did not actually deny having made the identification Officer Moore claimed he made. A.T.’s attorney did not cross-examine Pedro.
We find no error in the admission of Officer Moore’s testimony concerning the extra judicial identification by Pedro. Webb v. State, 426 So. 2d 1033 (Fla. 5th DCA 1983); Brown v. State, 413 So. 2d 414 (Fla. 5th DCA 1982); Sections 90.801, 90.-803 and 90.806 Florida Statutes (1983). However, we find the evidence that the appellant was guilty of theft to be insufficient. Danek v. State, 429 So. 2d 1369 (Fla. 3d DCA 1983); B.L.W. v. State, 393 So. 2d 59 (Fla. 3 DCA 1981).
Therefore for the reasons above stated the adjudication of delinquency under review be and the same is hereby reversed with directions to discharge the appellant.
Reversed and remanded with directions.
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Citator
Cited By
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Darius Jamine Polite v. State, 41 So. 3d 935 (Fla. 5th DCA 2010)…olding that prior identification is not hearsay when the declarant is available at trial for cross-examination and that it “makes no difference whether the witness admits or denies or fails to recall making the prior identification”); A.T. v. State, 448 So. 2d 613, 614 (Fla. 3d DCA 1984) (finding prior identification admissible even though de-clarant testified at trial that he possessed neither past nor present ability to identify defendant). It was sufficient that the State opened the door for cross-examinat…
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A.E.B. v. State, 818 So. 2d 534 (Fla. 2d DCA 2002)…that prior identification is not hearsay when the declarant is [*536] available at trial for cross-examination and that it “makes no difference whether the witness admits or denies or fails to recall making the prior identification”); A.T. v. State, 448 So. 2d 613, 614 (Fla. 3d DCA 1984) (finding prior identification admissible even though declarant testified at trial that he possessed neither past nor present ability to identify defendant). Therefore, in order to admit prior identification testimony under se…
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Fidelia Alexander v. Bird Rd. Ranch & Stables, Inc., 599 So. 2d 229 (Fla. 3d DCA 1992)…nt. That hearsay testimony presented Bird Road Ranch’s version of the accident.1 Bird Road Ranch contends that the testimony was admissible to impeach the owner’s prior admissions. See State v. Hill, 504 So. 2d 407 (Fla. 2d DCA 1987); A.T. v. State, 448 So. 2d 613 (Fla. 3d DCA 1984); § 90.806(1), Fla.Stat. (1989). We disagree. The owner’s statements describing the accident were not inconsistent with his previous admissions implying that the horse’s disposition rendered it unsuitable for Dr. Alexander to ride.…
Authorities Cited
- Brown v. State, 413 So. 2d 414 (Fla. 5th DCA 1982)
- Webb v. State, 426 So. 2d 1033 (Fla. 5th DCA 1983)
- B. L. W. v. State, 393 So. 2d 59 (Fla. 3d DCA 1981)
- Danek v. State, 429 So. 2d 1369 (Fla. 3d DCA 1983)
- Kimble v. State, 429 So. 2d 1369 (Fla. 3d DCA 1983)