ANTHONY SIMMONS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Anthony Simmons was convicted of strong arm robbery and sentenced as a habitual felony offender. On appeal, he challenged both the admission of hearsay testimony regarding victim identification and the trial judge's determination of predicate offenses for the HFO sentence. The court affirmed both the conviction and sentence, finding the hearsay error harmless and rejecting the argument that Apprendi v. New Jersey requires jury findings on prior offenses.
The court held that the detective's testimony did not qualify as an exception to hearsay under the 'identification' exception, as it was merely a statement of confidence in future identification rather than an actual identification of the person. However, any error was harmless given the victim's ample opportunity to observe the defendant and his trial testimony. Additionally, Apprendi does not require jury determination of prior offenses for HFO sentences, as recidivism is a traditional basis for sentencing enhancement independent of guilt on the underlying offense.
[1] A victim's statement of confidence in their ability to identify an assailant after the criminal episode does not qualify as a statement of identification for the purpose…
[2] An error in admitting a witness's statement of confidence in their ability to identify an assailant is harmless when there is ample time for the witness to observe the as…
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Join FLexlaw to unlock all legal intelligence“The statements in the instant case were not ones of identification. Detective Carbo testified that the victim stated that he was confident that he could identify his assailant. This does not qualify as a statement of "identification."”
Establishes that the detective's testimony about the victim's confidence in future identification does not fall within the hearsay exception for identification statements.
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Join FLexlaw to unlock all legal intelligenceAnthony Simmons was tried by jury and convicted of strong arm robbery. During trial, a detective testified that the victim stated he was confident he …
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STEVENSON, J.
Anthony Simmons was tried by jury and convicted of strong arm robbery. Simmons appeals his conviction, arguing that the trial judge erred in allowing a detective to testify that, during his initial investigation, the victim stated that he was certain he would be able to identify his assailant if the assailant were found. Appellant also challenges the trial court’s imposition of a habitual felony offender sentence because the existence of the predicate prior offenses was determined by the judge rather than the jury. We affirm both the conviction and the sentence.
We agree with Simmons that the trial judge erred in admitting the detective’s testimony as “identification” testimony, properly excluded from the definition of hearsay under section 90.801(2)(c), Florida Statutes (1999). The statements in the instant case were not ones of identification. Detective Carbo testified that the victim stated that he was confident that he could identify his assailant. This does not qualify as a statement of “identification .” Typically,
[The] situation contemplated by the code and the case law is one where the victim sees the assailant shortly after the criminal episode and says, “that’s the man.” Hence, the phrase “identification of a person made after perceiving him” refers to the witness seeing a person after the criminal episode and identifying that person as the offender. Stanford v. State, 576 So. 2d 737, 739-40 (Fla. 4th DCA)(footnote omitted), rev. denied, 587 So. 2d 1329 (Fla.1991). Nevertheless, given the ample time during this encounter that the victim had to become aware of Simmons’ physical features and the victim’s own testimony at trial concerning the certainty of his identification of appellant, we find the error harmless. See Goodwin v. State, 751 So. 2d 537, 541 (Fla.1999)(holding that harmless error test is satisfied when there is no reasonable possibility that the error contributed to the conviction).
As to his second issue on appeal, appellant relies on Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), for the proposition that findings necessary for imposition' of an HFO sentence should be submitted to the jury. However, we agree with the position taken in Wright v. State, 780 So. 2d 216, 217 (Fla. 5th DCA 2001), that:
The United States Supreme Court expressly acknowledged in Apprendi that recidivism is a traditional basis for increasing a sentence and is a fact which does not relate to the commission of the offense before the court. See also State v. Rucker, 613 So. 2d 460 (Fla.1993)(legislature enacted habitual felony offender statute to allow enhanced penalties for defendants who meet objective requirements indicating recidivism). Nothing in Apprendi overrules the Florida Supreme Court’s holding in Eutsey v. State, 383 So. 2d 219 (Fla.1980) that the determination that a defendant could be sentenced as an habitual felony offender was independent of the question of guilt in the underlying substantive offense and did not require the full panoply of rights afforded a defendant in the trial of the offense.
Therefore, we affirm appellant’s HFO sentence.
AFFIRMED.
POLEN and TAYLOR, JJ., concur.
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Ibar v. State, 938 So. 2d 451 (Fla. 2006)…of time and place, of the witnesses’ belief as to the guilty party, a result we do not believe intended by the drafters of the rule. Id. at 739-40 (footnote omitted); see also State v. Richards, 843 So. 2d 962 (Fla. 3d DCA 2003); Simmons v. State, 782 So. 2d 1000 (Fla. 4th DCA 2001). This interpretation of the statute has continued and formed the basis of the Second District Court of Appeal’s decision in Smith v. State, 880 So. 2d 730 (Fla. 2d DCA 2004). In Smith, the Second District addressed the identical…
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Denesiz Letroy Smith v. State, 880 So. 2d 730 (Fla. 2d DCA 2004)…mitted). To the same effect is State v. Richards, 843 So. 2d 962, 966-67 (Fla. 3d DCA 2003). A statement by the victim that he was confident of his ability to identify his assailant did not qualify as a statement of identification. Simmons v. State, 782 So. 2d 1000, 1001 (Fla. 4th DCA 2001). A police officer’s testimony in a prosecution for burglary that a witness reported seeing “two black men prowling around the neighborhood” was not admissible under section 90.801(2)(c). Hendrieth v. State, 483 So. 2d 768,…1 / 2
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Graddy Robbinson v. State, 784 So. 2d 1246 (Fla. 3d DCA 2001)…determinations regarding the defendant’s prior felony convictions. § 775.084(l)(a), Fla. Stat. (1993).2 Under Apprendi, those findings can be made by the judge and need not be made by the jury. 530 U.S. at 490, 120 S.Ct. 2348; see Simmons v. State, 782 So. 2d 1000 (Fla. 4th DCA 2001); Wright v. State, 780 So. 2d 216 (Fla. 5th DCA.2001). The habitual offender statute allows the trial court the discretion to impose an ordinary, non-habitual offender sentence “[i]f the court decides that imposition of sentence…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Apprendi v. New Jersey, 530 U.S. 466 (U.S. 2000)
- Goodwin v. State, 751 So. 2d 537 (Fla. 1999)
- Fredford James Eutsey v. State, 383 So. 2d 219 (Fla. 1980)
- State v. Rucker, 613 So. 2d 460 (Fla. 1993)
- Wright v. State, 780 So. 2d 216 (Fla. 5th DCA 2001)
- Stanford v. State, 576 So. 2d 737 (Fla. 4th DCA 1991)