CARMINE VINCENT PALMIERI, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Carmine Palmieri was convicted of robbery after being arrested without a warrant, detained for ten days without being taken before a magistrate, and identified at jail lineups. The Florida appellate court affirmed his conviction, rejecting his argument that the prolonged warrantless detention and pretrial identification procedures violated due process.
The court affirmed the conviction, holding that the defendant was not denied due process of law by the warrantless detention and pretrial identification procedures. The court adhered to its prior precedent establishing that a defendant is not denied due process where evidence is obtained prior to a preliminary hearing, and found the evidence from the lineup admissible.
“An officer who has arrested a person without a warrant, shall without unnecessary delay take the person arrested before the nearest or most accessible magistrate in the county in which the arrest occurs”
The statutory requirement that Palmieri argued was violated, establishing the legal duty breached by law enforcement in his case
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Join FLexlaw to unlock all legal intelligencePalmieri was arrested at his home without a warrant on March 1, 1965, and incarcerated in Dade County Jail where he was interrogated. He was never tak…
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This is an appeal from a judgment, upon conviction of robbery, in the Criminal Court of Record for Dade County. The judgment was entered pursuant to a jury verdict, and the defendant was sentenced to a term of 20 years in prison.
On Monday, March 1, 1965, the defendant was arrested at his home without a warrant and was incarcerated in the Dade County Jail where he was interrogated. Defendant was never taken before a committing magistrate.
He was identified by a prosecution witness (Loy Diehl) at a line-up which was held at the County Jail on March 2, 1965.
On March 10, 1965, after defendant had filed a petition for writ of habeas corpus, the State filed an information charging him with robbery.
At the trial, the case for the prosecution consisted of the testimony of Loy Diehl (the operator of the store that was robbed) and his son, Ronald, and their identification of the defendant; the testimony of the law enforcement officer who had ordered the defendant’s arrest and had conducted the line-ups; and the testimony of the officer who had made the initial investigation.
*513Appellant has presented two points as follows:
“Point I. Whether the defendant’s detention for ten days, upon an arrest without a warrant, and without his being- taken before a magistrate, while incriminating evidence was gathered against him from repeated lineups, amounted to a denial of due process of law pursuant to the Florida Constitution, Section 12, Declaration of Rights [F.S.A.] and United States Constitution, Fourteenth Amendment.
“Point II. Whether there was insufficient evidence to support the verdict.”
Appellant admits that the appellate courts of this State have frequently held that a defendant has not been denied due process of law where evidence has been obtained from him prior to a preliminary hearing. See Milton v. Cochran, Fla.1962, 147 So.2d 137; Montgomery v. State, Fla.1965, 176 So.2d 331.
Appellant urges that his case goes beyond the cases cited because the record demonstrates that the violation of Section 901.23,1 Fla.Stat.1963, F.S.A., resulted in a grave prejudice to him in his defense. It is urged that if the directions of the statute had been followed, the magistrate would have been required to release the defendant for lack of probable cause to retain the defendant in jail. It is pointed out that the evidence against the defendant was procured at the jail subsequent to the time at which the appellant would have been released if he had been taken before a magistrate. On this basis, appellant urges that reversal is required under the decisions of the Supreme Court of the United States in McNabb v. United States, 318 U.S. 332, 63 S.Ct. 608, 87 L.Ed. 819, and Watts v. State of Indiana, 338 U.S. 49, 69 S.Ct. 1347, 93 L.Ed. 1801. See also People v. Hamilton, 359 Mich. 410, 102 N.W.2d 738 (1960), and Vorhauer v. State, Del.1965, 212 A.2d 886.
Appellant’s point appears to have been decided against him by our opinion in Shea v. State, Fla.App.1964, 167 So.2d 796. See also DiBona v. State, Fla.App.1960, 121 So.2d 192. We therefore adhere to our prior opinion on this point.
Appellant’s Point II is without merit once it is determined that the evidence obtained at the line-up was admissible.
Affirmed.
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Citator
Cited By
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Richardson v. State, 199 So. 2d 770 (Fla. 3d DCA 1967)…PER CURIAM. Affirmed on the authority of Palmieri v. State, Fla.App.1966, 189 So. 2d 512; Yant v. State, Fla.App.1966, 192 So. 2d 297; Stuckey v. State, Fla.App.1967, 199 So. 2d 137 (opinion filed May 23, 1967). See also: Flowers v. State, 1943, 152 Fla. 649, 12 So. 2d 772; Wright v. State, Fla.App. 1966, 182 So. 2d 264; Gibson v. State…
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Palmieri v. Florida, 393 U.S. 218 (U.S. 1968)…Per Curiam. The petitioner was convicted of robbery in the Criminal Court of Dade County, Florida, and the judgment of conviction was affirmed by the District Court of Appeal, 189 So. 2d 512, and the Supreme Court of Florida, 198 So. 2d 633. We granted certiorari because the case appeared to present a substantial constitutional question concerning the admissibility at trial of “lineup” identifications made after the petitioner was arres…
Authorities Cited
- McNABB v. United States, 318 U.S. 332 (U.S. 1943)
- Watts v. Indiana, 338 U.S. 49 (U.S. 1949)
- Montgomery v. State, 176 So. 2d 331 (Fla. 1965)
- Milton v. Cochran, 147 So. 2d 137 (Fla. 1962)
- Guido DI Bona v. State, 121 So. 2d 192 (Fla. 2d DCA 1960)
- Shea v. State, 167 So. 2d 796 (Fla. 3d DCA 1964)