WILLIE CARL DOVE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Willie Carl Dove and Lorenzo Hunter were convicted of robbery by jury. Dove appealed contending insufficiency of identification evidence and error in denying his motion for severance from Hunter's trial. The court affirmed the conviction, finding sufficient identification evidence and no abuse of discretion in denying severance.
The court held that the evidence was sufficient to identify Dove through direct evidence by witnesses, that the jury properly rejected his alibi defense, and that the denial of the motion for severance was not an abuse of discretion because evidence of identification was equally strong against both defendants.
[1] A jury's rejection of alibi evidence is permissible when confronted with evidence placing the defendant at the scene of the crime.
[2] The granting or denial of a motion for severance is within the trial court's discretion, and the burden is on the movant to demonstrate an abuse of that discretion.
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Join FLexlaw to unlock all legal intelligence“He called to the other man, saying: 'Willie, Willie, come here, look what I found.'”
Direct evidence placing Dove at the scene of the crime, as one robber called to the other by name during the robbery
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Join FLexlaw to unlock all legal intelligenceTwo men knocked on a blind man's (Mr. Jones) residence where Mrs. Browning was also present. One man assembled a sawed-off shotgun, took approximately…
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[*385] PER CURIAM.
Willie Carl Dove and Lorenzo Hunter were tried by jury and convicted of the crime of robbery. Willie Dove appealed. On consideration of the record, briefs and argument, we hold no reversible error has been shown.
Appellant’s contention of insufficiency of the evidence as to his identification is not supported by the record. Shortly after noon on a certain day two men knocked and were admitted into the residence occupied by a Mr. Jones, who was blind. Present therein was a Mrs. Browning. From a bag carried by them one of the men extracted and assembled a sawed-off shotgun. He searched Mr. Jones and took from him a sum of money of approximately $200. Thereupon he called to the other man, saying: “Willie, Willie, come here, look what I found.” The men then tied up the two victims.
Witnesses saw them “trotting” from the house carrying a bag. With Mrs. Browning they identified Dove at the city sanitation department, where he was employed. Mrs. Browning identified Hunter from his picture among a group of photographs at the police department, and also at a lineup. The witnesses made in-court identifications of Hunter and Dove.
The appellant sought to establish an alibi. He presented witnesses who testified he was at the sanitation department location at the time the robbery was stated to have taken place. Involved was an issue of his whereabouts during the noon hour. That issue was one for determination by the jury, which rejected the alibi evidence as was its province, in face of the evidence placing appellant at the scene of the crime. Stuckey v. State, 199 So. 2d 137 (Fla.App.1967); Kennedy v. State, 153 Fla. 863, 16 So. 2d 45 (Fla.1943); Flowers v. State, 152 Fla. 649, 12 So. 2d 772 (Fla.1943).
The granting or denial of Dove’s motion for severance was a matter within the discretion of the court, and the appellant had the burden to show the denial of the motion constituted an abuse of discertion. Manson v. State, 88 So. 2d 272 (Fla.1956). The appellant argued it was error because the evidence against the other defendant was strong and that against appellant was meager, citing Westbrook v. State, 64 So. 2d 320 (Fla.1953).
Here the evidence of the commission of the offense was equally strong against both defendants. The evidence which the appellant referred to as being strong against Hunter and meager against him was that relating to identification. Based thereon, appellant sought reversal and a new trial on the theory that since Hunter was readily identifiable (because of his unusual facial structure) the jury may have been influenced against the appellant by the fact that he was tried jointly, with Hunter. That argument presupposes insufficiency of the evidence of identification of the appellant, which as we view this record was not the case. Dove was identified by direct evidence. Harris v. State, 129 Fla. 733, 177 So. 187 (Fla.1937); Martin v. State, 100 Fla. 16, 129 So. 112 (Fla.1930). The fact that evidence of identification of one defendant is strong or even overwhelming will not lessen the probative force of evidence of identification of the other defendant.
The judgment is affirmed.
RAWLS, C. J., WIGGINTON, J., and CARROLL, CHARLES A., Associate Judge, concur.
Cases With Similar Vibessemantic neighbors from the corpus
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Stripling v. State, 349 So. 2d 187 (Fla. 3d DCA 1977)…of the motion to sever. Abbott v. State, 334 So. 2d 642 (Fla.3d DCA 1976). See also State v. Talavera, 243 So. 2d 595 (Fla.1971); Rodriguez v. State, 237 So. 2d 772 (Fla.3d DCA 1970); Grech v. State, 243 So. 2d 216 (Fla.3d DCA 1971); Dove v. State, 287 So. 2d 384 (Fla.1st DCA 1973). After a review of the record, we conclude Stripling has failed in his burden of showing the denial of his severance motion constituted an abuse of discretion. In light of the above disposition, we do not deem it necessary to con…
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Williams v. State, 383 So. 2d 722 (Fla. 1st DCA 1980)…m through his contacts in the Tampa and Polk County police agencies. See State v. Felton, 348 So. 2d 1214 (Fla. 4th DCA 1977). Nor did the trial judge abuse his discretion by denying severance because of John Thomas Williams’ illness. Dove v. State, 287 So. 2d 384 (Fla. 1st DCA 1973). A motion for severance may be denied, moreover, even when one co-defendant commits more reprehensible acts than another. Scheel v. State, 350 So. 2d 1120 (Fla. 3rd DCA 1977). Larry Williams and Wilson raise the second point, th…
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Dove v. State, 294 So. 2d 655 (Fla. 1974)…Certiorari denied. 287 So. 2d 384. ROBERTS, Acting C. J., and ERVIN, McCAIN, DEKLE and OVERTON, JJ., concur.…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Town of Boynton v. State, 100 Fla. 16 (Fla. 1930)
- Flowers v. State, 152 Fla. 649 (Fla. 1943)
- Emmett Manson v. State, 88 So. 2d 272 (Fla. 1956)
- Augustus Harris v. State, 129 Fla. 733 (Fla. 1937)
- Fulwood v. State, 152 Fla. 693 (Fla. 1943)
- Harley Kennedy v. State, 153 Fla. 863 (Fla. 1943)
- Conch v. City OF Miami, 199 So. 2d 137 (Fla. 3d DCA 1967)
- Westbrook v. State, 64 So. 2d 320 (Fla. 1953)