RODNEY BOYNTON, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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The court held that an agreement to participate in a live lineup, of which the defendant was aware and bound by, rendered his subsequent refusal to participate admissible against him as consciousness of guilt.
The defendant agreed to appear in a live lineup but subsequently refused to participate. The state sought to admit this refusal as evidence of conscio…
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SCHWARTZ, Chief Judge.
Rejecting Boynton’s primary contention, we hold that the agreement of counsel that the defendant appear in a live lineup, of which he was presumptively aware, Dumas v. State, 439 So. 2d 246, 249-52 (Fla. 3d DCA 1983), review denied, 462 So. 2d 1105 (Fla.1985), and by which he was bound, see State v. Jones, 561 So. 2d 532 (Fla.1990), rendered his subsequent refusal to participate, contrary to the agreement, admissible against him as reflecting a consciousness of guilt under the doctrine stated in Herring v. State, 501 So. 2d 19 (Fla. 3d DCA 1987).1
The appellant’s other point was not preserved below and does not present fundamental error. See Kelley v. State, 486 So. 2d 578 (Fla.1986), cert. denied, 479 U.S. 871, 107 S.Ct. 244, 93 L.Ed.2d 169 (1986).
Affirmed.
. It is thus unnecessary to determine whether, on its own facts, Herring should be given continuing viability. But see South Dakota v. Ne-ville, 459 U.S. 553, 103 S.Ct. 916, 74 L.Ed.2d 748 (1983); Occhicone v. State, 570 So. 2d 902 (Fla. 1990) (Grimes, J., concurring).
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Citator
Cited By
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State v. Freddy Morales, 678 So. 2d 510 (Fla. 3d DCA 1996)…A 1980); Gorman v. State, 636 So. 2d 203 (Fla. 1st DCA 1994); see also Jordon v. State, 631 So. 2d 362 (Fla. 1st DCA 1994); Bauman v. State, 600 So. 2d 551 (Fla. 2d DCA 1992); Key v. State, 599 So. 2d 1040 (Fla. 2d DCA 1992); Dailey v. [*511] State, 575 So. 2d 287 (Fla. 2d DCA 1991); Hicks v. State, 559 So. 2d 1265 (Fla. 3d DCA 1990); Casseus v. State, 509 So. 2d 965 (Fla. 3d DCA 1987). The Second District has held to the contrary, ruling that a trial court has concurrent jurisdiction to correct an illegal s…
Authorities Cited
- South Dakota v. Neville, 459 U.S. 553 (U.S. 1983)
- Kelley v. State, 486 So. 2d 578 (Fla. 1986)
- Occhicone v. State, 570 So. 2d 902 (Fla. 1990)
- Dumas v. State, 439 So. 2d 246 (Fla. 3d DCA 1983)
- Herring v. State, 501 So. 2d 19 (Fla. 3d DCA 1986)
- Dumas v. State, 462 So. 2d 1105 (Fla. 1985)
- State v. Jones, 561 So. 2d 532 (Fla. 1990)