ANDRES MIRANDA, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE

Fla. 3d DCA | 1970-06-23
No. 69-955
Before PEARSON, C. J., CHARLES CARROLL, J., and BALABAN, HENRY L., Associate Judge.
237 So. 2d 228 Florida District Court of Appeal, Third District (1970) Positive Treatment
Cited by 2 cases

AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.

Synopsis

Miranda was convicted of possession, selling, and conspiracy to sell heroin. On appeal, he challenged the trial court's admission of testimony from his co-defendant Symonette, who pleaded guilty shortly before trial and was not previously listed as a witness, and also challenged the sufficiency of the evidence supporting his conviction. The appellate court affirmed, holding that the trial court properly exercised its discretion in allowing the previously unlisted witness to testify.


Holding

The trial court properly exercised its discretion in allowing Symonette's testimony because Symonette became a witness only after his guilty plea, which occurred after the state had already listed its witnesses, and there was no showing of bad faith by the state. The evidence was sufficient to support the conviction.


Headnotes

[1] A trial court has discretion to permit a witness to testify even if their name was not previously supplied to the defendant, provided there is no bad faith or abuse of di…

[2] A defendant's counsel is not deprived of a fair opportunity to prepare for trial when the witness's potential testimony can be anticipated and there is ample time to inte…

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Key Quotes

“Since an effective plea of guilty by an accused necessarily represents his free and voluntary choice, there is no basis to charge the state with bad faith in connection with the witness becoming available to testify on behalf of the state by reason of his guilty plea.”

Establishes that the state cannot be charged with bad faith merely because a co-defendant became available as a witness after pleading guilty

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Facts & Procedural History

Miranda and Symonette were charged with possession of heroin, selling heroin, and conspiracy to sell heroin. Shortly before trial, Symonette pleaded g…

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Opinion of the Court
PER CURIAM.

PER CURIAM.

The appellant and Herman George Sy-monette were charged by information with (1) possession of a narcotic (heroin), (2) selling, and (3) conspiring to sell the same.

Shortly before the commencement of the trial, Symonette pleaded guilty and was so adjudged. When he was offered as a witness by the state, at the jury trial of the *229appellant, the latter objected on the ground that Symonette’s name had not been supplied by the state as a proposed witness. The objection was overruled. Symonette testified. Miranda was convicted on all three counts. On this appeal therefrom he contends the court erred in permitting the testimony of Symonette as a witness on behalf of the state, and challenges the sufficiency of the evidence.

We have considered these contentions of the appellant in the light of the record and briefs and find them to be without merit. Section 906.29 Fla.Stat., F.S.A., provides: “It shall not be necessary to indorse in any indictment or information the names of the witnesses on whose evidence the same is based, but upon motion of the defendant, the court shall order the prosecuting attorney to furnish the names of such witnesses.”

At the time the state was called upon to furnish the names of such witnesses, Sy-monette was not, as referred to in the above quoted section of the statute, a witness on whose evidence the information was based, but he was then one of the, accused against whom the information had been filed. His availability as a witness at the time of trial resulted from the fact he had pleaded guilty after the listing of witnesses by the state, and shortly prior to the time for trial. Since an effective plea of guilty by an accused necessarily represents his free and voluntary choice, there is no basis to charge the state with bad faith in connection with the witness becoming available to testify on behalf of the state by reason of his guilty plea. In the circumstances presented, it was within the discretion of the court to permit the state to present that witness.

In Rhome v. State, Fla.App.1969, 222 So.2d 431, 433-434, this court said: “Once that statute [§ 906.29] has been complied with, it was within the trial court’s discretion to allow an additional witness who had not been endorsed by name on the information or indictment or whose name had not been supplied to the defendant, to testify, (citing cases) Neither bad faith nor abuse of discretion has been demonstrated by the appellant.”

As a further ground in support of his contention that the court erred in permitting the witness Symonette to testify, the appellant argues that even if the witness was not required by law to be rejected where not previously listed, it was an abuse of discretion to accept his testimony because counsel for the defendant Miranda was deprived of opportunity to depose or interview the witness Symonette prior to his testimony. We find no merit in that contention. The record discloses that as early as the morning on which the trial was commenced, it was known to the attorney for the defendant Miranda that Symo-nette had pleaded guilty and was to be produced as a witness for the state. Also, it was disclosed that Symonette was not called to the stand until after 10:00 o’clock on the morning of the second day of the trial. Inasmuch as both Miranda and Sy-monette had been charged with participation in the transactions which were the subject matter of the trial, Miranda’s counsel was in a position to anticipate generally the nature of the testimony which Symo-nette was in a position to give, and therefore the failure to have sufficient time to take Symonette’s deposition prior to trial was not fatal, particularly when there was ample time in which Miranda’s counsel could have interviewed Symonette prior to the latter’s testimony. We hold, therefore, that the action of the trial court in overruling objection to testimony by Symonette was reasonable and proper, and did not represent an abuse of discretion.

On the second question raised by the appellant, relating to the sufficiency of the evidence, a review of the record reveals that the conviction was supported by competent substantial evidence, giving due consideration to the quantum of proof re*230quired in such case. Even aside from the testimony of Symonette, we are not persuaded that the evidence otherwise presented was not sufficient to sustain the conviction.

Affirmed.


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Citator

Cited By

  • Andrews v. State, 372 So. 2d 143 (Fla. 3d DCA 1979)
    …judge not to grant a continuance will be reversed only when a clear abuse of discretion is made to appear. See Graham v. State, 143 So. 2d 567 (Fla. 3d DCA 1962). No abuse of discretion appears in the ruling of the trial judge. Cf. Miranda v. State, 237 So. 2d 228 (Fla. 3d DCA 1970). Having considered the points presented and finding no prejudicial error, the judgment and sentence are affirmed. Affirmed. . This court’s opinion upon the appeal of Mark Sublette, filed December 12, 1978, is reported at 365 So…

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