ANASTACIO FIGUEROA, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Anastacio Figueroa appeals his convictions for kidnapping with a deadly weapon, attempted sexual battery with a deadly weapon, and grand theft, as well as his consecutive sentences as a habitual felony offender. The Florida District Court of Appeal affirms the convictions and sentences, finding no merit in Figueroa's two appellate arguments regarding the admissibility of a photographic lineup and the habitual offender sentencing.
The trial court did not commit reversible error in denying the suppression motion, as the photographic lineup was neither impermissibly suggestive nor did it create a substantial likelihood of irreparable misidentification. The trial court did not err in sentencing the defendant as a habitual felony offender because unchallenged evidence established that he was released on parole within five years of the commission of the offenses as required by statute.
[1] A photographic lineup identification is not impermissibly suggestive if it does not give rise to a substantial likelihood of irreparable misidentification.
[2] A defendant may be sentenced as a habitual felony offender if released on parole for a prior felony conviction within five years of the commission of the instant offenses…
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Join FLexlaw to unlock all legal intelligence“The photographic lineup was neither impermissibly suggestive nor did it give rise to a substantial likelihood of irreparable misidentification.”
Establishes the two-part test for admissibility of photographic lineups and the court's finding that both prongs were satisfied.
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Join FLexlaw to unlock all legal intelligenceFigueroa was convicted by jury of kidnapping with a deadly weapon, attempted sexual battery with a deadly weapon, and grand theft, second degree. He w…
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PER CURIAM.
This is an appeal by the defendant Anasta-cio Figueroa from (1) judgments of conviction for (a) kidnapping with a deadly weapon [§§ 787.01(1), (2), 775.087(1), Fla.Stat. (1991) ], (b) attempted sexual battery with a deadly weapon [§§ 794.011(3), 777.04(4)(b), Fla.Stat. (1991) ], and (c) grand theft, second degree [§ 812.014(l)(b), Fla.Stat. (1991) ] entered upon adverse jury verdicts; and (2) consecutive sentences of life imprisonment, thirty-years imprisonment, and ten-years imprisonment, respectively, entered upon the above judgments as a habitual felony offender [§ 775.084(l)(a), (4)(a), Fla.Stat. (1991)]. We find no merit in the two points raised by the defendant on appeal and affirm.
First, the trial court did not, as urged, commit reversible error by denying the defendant’s pretrial motion to suppress a photographic lineup identification of the defendant by the complainant in this case. The photographic lineup was neither impermissi-bly suggestive nor did it give rise to a substantial likelihood of irreparable misidentification. See Grant v. State, 390 So. 2d 341 (Fla.1980), cert. denied, 451 U.S. 913, 101 S.Ct. 1987, 68 L.Ed.2d 303 (1981).
Second, the trial court did not, as urged, err in sentencing the defendant under the habitual offender act as a habitual felony offender [§ 775.084(l)(a), (4)(a), Fla.Stat. (1991) ]. Contrary to the defendant’s argument, there was unchallenged evidence adduced below that the defendant was released on parole on the last of his many prior felony convictions within five years of the date of the commission of the offenses in the instant case as required by Section 775.084(l)(a)2, Florida Statutes (1991). The presentence investigation report filed in this case indicates that the defendant was released on parole in December 1986 on a series of 1976 New Jersey felony convictions (R. 114); the offenses in the instant case were committed May 13, 1991 or within four and one-half years of the defendant’s release on parole. The defendant at no time challenged this factual scenario below.
The judgments of conviction and sentences under review are, in all respects,
Affirmed.
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Lewis v. State, 223 So. 3d 383 (Fla. 2d DCA 2017)…(Fla. 2d DCA 2002); Hurlburt v. State, 807 So. 2d 687 (Fla. 2d DCA 2002); Cooper v. State, 902 So. 2d 945 (Fla. 4th DCA 2005); Hepburn v. State, 778 So. 2d 448 (Fla. 3d DCA 2001); Boyd v. State, 753 So. 2d 692 (Fla. 4th DCA 2000); Figueroa v. State, 632 So. 2d 195 (Fla. 3d DCA 1994). WALLACE, LUCAS, and BADALAMENTI, JJ., Concur.…
Authorities Cited
- Grant v. State, 390 So. 2d 341 (Fla. 1980)
- Delgado v. Israel, 451 U.S. 913 (U.S. 1981)
- Girardi v. Virginia, 451 U.S. 913 (U.S. 1981)