CLAUDE LEE SIMMONS, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Claude Lee Simmons appealed his robbery conviction following a jury verdict, raising three procedural challenges: admission of lineup identification evidence, failure to instruct on lesser included offenses, and improper jury separation. The Florida District Court of Appeal rejected all three arguments and affirmed the conviction.
The court found no merit in any of Simmons's contentions. The lineup identification was properly admitted because it occurred before Wade and Gilbert and was not subject to retroactive application. The trial court properly refused lesser included offense instructions because no such request was made. Jury separation between instructions and deliberation did not violate law because the jury had not been confined together during trial.
“As to the first point, the identification involved occurred prior to the Supreme Court's decision in United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149; Gilbert v. State of California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178, and these criteria were not to be applied retroactively.”
Establishes that Wade-Gilbert lineup requirements do not apply retroactively to pre-Wade identifications
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Join FLexlaw to unlock all legal intelligenceSimmons was charged by information with robbery, pleaded not guilty, and demanded a jury trial. The jury returned an adverse verdict, and the court ad…
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The appellant was informed against by an information charging him with the crime of robbery. He pleaded not guilty and demanded a jury trial, which resulted in an adverse verdict. Following adjudication and sentence thereon, this appeal has been prosecuted. The following points are preserved for review: First, that the court erred in admitting “lineup” identification evidence at the time of trial. Second, that the trial court erred in refusing to give charges relating to lesser included offenses. Third, that the trial court erred in permitting the jury to separate between the time of instructions but prior to their retiring for deliberation. We find no merit in any of these contentions, and affirm.
As to the first point, the identification involved occurred prior to the Supreme Court’s decision in United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149; Gilbert v. State of California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178, and these criteria were not to be applied retroactively. See: Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199. Plus, it is apparent that the defendant was accorded all the necessary constitutional warnings as outlined in Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694. See also: Shepard v. State, Fla.App.1968, 213 So.2d 11, (opinion filed July 31, 1968).
As to the second point, no request for charges on lesser included offenses was presented to the trial court. Therefore, we find no error in failing to so instruct. Flagler v. State, Fla.1967, 198 So.2d 313; Brown v. State, Fla.1968, 206 So.2d 377; Burkhead v. State, Fla.App. 1968, 206 So.2d 690.
*730The third point is not well taken, in view of § 919.02, Fla.Stat., F.S.A., and Rule 1.380(b), Florida Rules of Criminal Procedure, 33 F.S.A. The separation in the instant case occurred between the termination of the instructions and the time the jury retired. The jury had not been confined together during the pendency of the trial and, therefore, there was no requirement that they be confined between the termination of the instructions and the time they retired to consider their verdict.
Therefore, for the reasons above stated, the verdict, adjudication, and sentence here under review be and the same is hereby affirmed.
Affirmed.
Cases With Similar Vibessemantic neighbors from the corpus
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Livingston v. State, 458 So. 2d 235 (Fla. 1984)…ury to separate after the taking of all the evidence and the giving of instructions and before they begin deliberating. Fla.R.Crim.Pro. 3.370(b). There is no requirement of sequestration prior to final retirement for deliberations. Simmons v. State, 214 So. 2d 729 (Fla. 3d DCA 1968). But thereafter, especially in a capital case where there has been extensive pre-trial publicity, we believe that different principles should apply. There is no automatic rule requiring sequestration of the jury during the trial…
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Johnson v. State, 229 So. 2d 13 (Fla. 4th DCA 1969)…r at the charge conference or at the time the matter was first brought to the court’s attention. No error is shown on this point. Brown v. State, Fla. 1968, 206 So. 2d 377; Flagler v. State, Fla.1967, 198 So. 2d 313; Simmons v. State, Fla.App. 1968, 214 So. 2d 729; Jerry v. State, Fla.App. 1968, 213 So. 2d 440. Appellant’s other point on appeal is directed to the sentence of SO years in the state prison. Such a sentence would be justified only for a third or subsequent conviction of unlawfully selling a narc…
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Polite v. State, 217 So. 2d 580 (Fla. 4th DCA 1969)…PER CURIAM. Affirmed on authority of Simmons v. State, Fla.App.1968, 214 So. 2d 729; State v. Youngblood, Florida Supreme Court, 217 So. 2d 98, opinion filed December 17, 1968; and Belton v. State, Florida Supreme Court, 217 So. 2d 97, opinion filed December 17, 1968. Affirmed. WALDEN, C. J., and McCAIN, and REED, JJ., concur.…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Miranda v. Arizona, 384 U.S. 436 (U.S. 1966)
- United States v. Wade, 388 U.S. 218 (U.S. 1967)
- Stovall v. Denno, 388 U.S. 293 (U.S. 1967)
- Gilbert v. California, 388 U.S. 263 (U.S. 1967)
- Brown v. State, 206 So. 2d 377 (Fla. 1968)
- Flagler v. State, 198 So. 2d 313 (Fla. 1967)
- Burkhead v. State, 206 So. 2d 690 (Fla. 3d DCA 1968)
- Readus Roscoe Shepard v. State, 213 So. 2d 11 (Fla. 2d DCA 1968)