JOHNNIE MILTON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Florida appellate court reversed a heroin sale conviction where evidence of guilt was marginal and a deputy sheriff improperly testified about outstanding warrants against the defendant, requiring a new trial.
Where evidence of guilt is marginal, improper testimony about outstanding warrants against the defendant requires reversal and a new trial.
[1] Improper testimony regarding outstanding warrants against a defendant requires reversal when the evidence of guilt is marginal, as such evidence may be the decisive facto…
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Join FLexlaw to unlock all legal intelligence“where the evidence of guilt is marginal a comment of this type, which an experienced officer should know better than to introduce before the jury, may have been the factor responsible for the guilty verdict”
The court explained why the improper warrant testimony required reversal despite the marginal evidence of guilt.
Milton was picked up by a police informer and undercover deputy sheriff with a heroin addict woman; a heroin sale occurred in Belmont Heights, with ev…
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MANN, Chief Judge.
The evidence against Milton is tenuous. A police informer and a deputy sheriff disguised as a heroin customer picked up a woman who was a heroin addict. Milton, she testified, came along for the ride, to get from where they were to Belmont Heights. There is sufficient evidence that in Belmont Heights a sale of heroin took place, but the evidence links the woman to the transaction positively and Milton only circumstantially. If the sole question presented was that of the sufficiency of evidence, we would affirm. The deputy sheriff stated to the jury that Milton commented on the heroin dealer with whom the woman transacted business as a person of good character who would “not sell you milk sugar” as heroin. If the evidence were fairly presented the jury would be entitled to believe that Milton knew a lot more about the heroin traffic than he professed to know. Unfortunately, the deputy sheriff gratuitously stated to the jury that Milton “stated at that time that there was a couple of warrants for him. And I think it was shoplifting and . . . ” At this point an objection was made and sustained. The jury was admonished to disregard that part of the deputy’s testimony.
The problem is that where the evidence of guilt is marginal a comment of this type, which an experienced officer should know better than to introduce before the jury, may have been the factor responsible for the guilty verdict. The discussion of warrants outstanding against Milton was uncalled for and requires a new trial. See Anthony v. State, Fla.App.2d 1971, 246 So. 2d 600.
Reversed and remanded.
McNULTY and GRIMES, JJ., concur.
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State v. Jones, 327 So. 2d 18 (Fla. 1976)…probation. This Williams deci [*23] sion was followed by the Third District in Reynolds v. State, 293 So. 2d 743 (Fla. App.3d 1974); Bryant v. State, 290 So. 2d 122 (Fla.App.3d 1974); Kohn v. State, 289 So. 2d 48 (Fla.App.3d 1974); Harris v. State, 288 So. 2d 552 (Fla.App.3d 1974); McNeill v. State, 287 So. 2d 745 (Fla.App. 3d 1974); Cleveland v. State, 287 So. 2d 347 (Fla.App.3d 1973); Metchik v. State, 286 So. 2d 269 (Fla.App.3d 1973); Hutchins v. State, 286 So. 2d 244 (Fla. App.3d 1973), and Mylks v. Stat…
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Lewis v. State, 298 So. 2d 540 (Fla. 4th DCA 1974)…of a portion of the sentence imposed upon the defendant.” Id. at 519. and held that the probationary period could only be within the one year sentence. Williams was followed by Bryant v. State, 290 So. 2d 122 (3d D.C.A. Fla.1974); Harris v. State, 288 So. 2d 552 (3d D.C.A. Fla.1974); Kohn v. State, 289 So. 2d 48 (3d D.C.A. Fla.1974); McNeill v. State, 287 So. 2d 745 (3d D.C.A. Fla.1974); Reynolds v. State, 293 So. 2d 743 (3d D.C.A. Fla.1974); Cleveland v. State, 287 So. 2d 347 (3d D.C.A. Fla.1973); Hutchins…
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Durham v. State, 304 So. 2d 146 (Fla. 3d DCA 1974)…withheld. The procedure in this court has been to amend the illegal sentence by striking the provision for probation and to affirm the remainder of the sentence as modified. Kohn v. State, Fla.App. 1974, 289 So. 2d 48; Harris v. State, Fla.App.1974, 288 So. 2d 552. At this juncture, it becomes necessary to decide whether to follow our above stated procedure as to the original sentence, or whether the second sentence, five years in the state penitentiary, was proper and will stand. The state contends that si…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Marianna J. Anthony v. State, 246 So. 2d 600 (Fla. 2d DCA 1971)