DARIOUS DAVIS, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Darious Davis appeals his conviction and sentence for armed robbery. The court affirmed the conviction but reversed and remanded on sentencing due to ambiguity regarding whether Davis was sentenced under both a prison release re-offender statute and a habitual violent felony offender statute, which would constitute error.
The court affirmed the conviction and denial of the suppression motion, finding the show-up identification admissible. Although the court found error in the jury instruction discouraging read-back requests, this did not constitute fundamental error and was waived for appellate purposes due to lack of preservation. The court reversed the sentencing and remanded because the record did not clearly reflect whether Davis was sentenced under one or both statutes, and sentencing under both would be error.
[1] A show-up identification conducted shortly after a crime near the scene of the arrest is not inherently suggestive and may be admissible.
[2] A trial court errs by instructing the jury that the law prohibits the court from reading back testimony.
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Join FLexlaw to unlock all legal intelligence“This preemptive instruction by the trial judge was obviously intended to deter any requests to have testimony read back. While it is understandable that no trial judge wishes to encourage read-back requests, given the mandate of rule 3.410, it is error to discourage them.”
Establishes that while the trial court's instruction was erroneous, it did not rise to fundamental error because it was not preserved through objection.
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Join FLexlaw to unlock all legal intelligenceOn January 13, 1998, a 71-year-old woman was robbed at gunpoint while entering her parked vehicle. Approximately two hours later, a show-up identifica…
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PER CURIAM.
Appellant Darious Davis appeals his conviction and sentence for armed robbery. We affirm the conviction, but reverse and remand on the sentencing point.
On January 13, 1998, a seventy-one year old woman was robbed at gunpoint upon entering her parked vehicle. Approximately two hours after the robbery, a show-up identification was' conducted in the street near the home where Davis and the co-defendant were arrested after the victim identified Davis as her assailant. Davis’ motion to suppress the victim’s identification of him was denied. We find no merit in Davis’ motion to suppress the show-up identification and affirm the trial court’s denial of suppression.
Davis also challenges a portion of the trial judge’s instructions given to the jury prior to deliberations. After giving the standard jury instructions, the judge stated:
There are some times when jurors say: “[w]ell, what did witness number 3 say when they said this or what did they mean when they said that?” You’re basically asking us to tell you again what somebody said or to interpret what somebody said in the courtroom. The law doesn’t allow us to answer those kinds of questions. You have to rely upon your recollection of what the person said when they testified. You have to rely upon that and the instructions on the law that you have been given the way they are.
We find that the trial court erred by instructing the jury that the law did not allow the court to read back testimony. See Fla. R.Crim. P. 3.410. This preemptive instruction by the trial judge was obviously intended to deter any requests to have testimony read back. While it is understandable that no trial judge wishes to encourage read-back requests, given the mandate of rule 3.410, it is error to discourage them. In our view, however, this error does not constitute fundamental error. Therefore, as the issue was not preserved by defense counsel with an objection to the offending instruction, it has been waived for appellate purposes. See Diaz v. State, 567 So. 2d 18, 19 (Fla. 3d DCA 1990).
Finally, Davis challenges his sentences as both a prison release re-offender pursuant to section 775.082(8), Florida Statutes (1999), and a habitual violent felony offender pursuant to section 775.084(4), Florida Statutes (1999). The State agrees that it would be error to sentence Davis under both statutes, but claims that Davis was sentenced only as a prison release re-offender. We are unable to determine from the record whether the State is correct; therefore, we must reverse on the sentencing issue and remand to the trial court to ensure that the record clearly reflects that Davis was not sentenced as a habitual violent felony offender. Affirmed in part, reversed in part and remanded.
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Frasilus v. State, 46 So. 3d 1028 (Fla. 5th DCA 2010)…t it may request a read-back of any relevant testimony. Even if a court’s failure to inform the jury of their right to request a read-back in a case such as this were error, it is hard to conceive that it would be fundamental error. Davis v. State, 760 So. 2d 977, 978 (Fla. 3d DCA 2000); Farrow v. State, 573 So. 2d 161, 162-63 (Fla. 4th DCA 1990). We are aware of only one Florida case, LaMonte v. State, 145 So. 2d 889 (Fla. 2d DCA 1962), in which the court’s failure to advise the jury of the right to a read-…
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Datoral Smith v. State, 990 So. 2d 1162 (Fla. 3d DCA 2008)…ings.”). While we agree that it was error to discourage the jury from requesting a read-back of testimony, we cannot conclude that the error so vitiated the defendant’s right to a fair trial that it constituted fundamental error. See Davis v. State, 760 So. 2d 977, 978 (Fla. 3d DCA 2000); Diaz v. State, 567 So. 2d 18, 19 (Fla. 3d DCA 1990); Farrow v. State, 573 So. 2d 161, 163 (Fla. 4th DCA 1991); see also Fla. R.Crim. P. 3.410. Third, Smith argues that the trial court erred in sentencing him as a prison rel…
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Aundra Johnson v. State, 10 So. 3d 680 (Fla. 3d DCA 2009)…appellate review as Johnson specifically objected to the trial court’s instructions to the jury. As this Court has previously held, it is error for the trial court to discourage the jury from requesting a read-back of testimony. See Davis v. State, 760 So. 2d 977, 978 (Fla. 3d DCA 2000). Indeed, “[w]hile the trial court has the discretion to deny a jury’s request to read back testimony, it may not mislead the jury into thinking that a readback is prohibited.” Avila, 781 So. 2d at 415. Although the State con…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Diaz v. State, 567 So. 2d 18 (Fla. 3d DCA 1990)