ALVIN LEE GARRETT, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Alvin Lee Garrett was convicted of larceny of an automobile and being a subsequent felony offender. The Florida Fourth District Court of Appeal reversed both convictions due to prosecutorial discovery violations and improper denial of a lesser-included offense jury instruction.
The Court reversed both convictions. First, the trial court reversibly erred by allowing Meg Burke's testimony without making adequate inquiry into the state's failure to disclose her name before trial. Second, the trial court reversibly erred in denying the requested jury instruction on temporary unauthorized use because it is a necessarily lesser-included offense of larceny of an automobile. Third, the subsequent felony offender conviction was improper because the underlying larceny conviction was not final when the defendant had appealed it.
[1] A trial court reversibly errs in permitting an unlisted witness to testify without adequate inquiry into the state's failure to provide the witness' name prior to trial.
[2] A trial court reversibly errs in denying a requested jury instruction on a necessarily lesser included offense.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“The court failed to make adequate inquiry into the circumstances surrounding the state's failure to provide the witness' name before the day of trial.”
Establishes the trial court's error in permitting witness testimony without proper disclosure and inquiry
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Join FLexlaw to unlock all legal intelligenceGarrett was charged with larceny of an automobile (Case No. 75-620) and convicted. He was subsequently charged with being a subsequent felony offender…
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WALDEN, Chief Judge.
Defendant was convicted of larceny of an automobile (Case No. 75-620). Defendant was then convicted of being a subsequent felony offender (Case No. 75-1009). He appeals both of these convictions in this consolidated appeal. First, we reverse defendant’s conviction of larceny of an automobile on two grounds. First, the court reversibly erred in permitting Meg Burke to testify, despite the fact that her name was not furnished to the defense until the day of trial. The court failed to make adequate inquiry into the circumstances surrounding the state’s . failure to provide the witness’ name before the day of trial. Richardson v. State, 246 So. 2d 771 (Fla.1971).
Secondly, the trial court reversibly erred in denying defendant’s requested jury instruction on temporary unauthorized use of a motor vehicle. Temporary unauthorized use is a necessarily lesser included offense of larceny of an automobile, Cox v. State, 243 So. 2d 611 (3rd D.C.A.Fla.1971); Wright v. State, 216 So. 2d 229 (2nd D.C.A. Fla.1968). Being a necessary included lesser offense, Brown v. State, 206 So. 2d 377 (Fla.1968), the trial court was required to give instructions thereon, State v. Terry, Fla., 336 So. 2d 65. Opinion filed February 25, 1976.
We also reverse defendant’s conviction as a subsequent felony offender. The court should have granted defendant’s motion to dismiss this information. His being a subsequent felony offender was based upon his conviction of larceny of an automobile, from which he had taken an appeal (Case No. 75-620, the other portion of this consolidated appeal, supra). Since defendant had taken an appeal, his conviction of larceny of an automobile was not final and, therefore, could not be relied upon to convict him as a subsequent felony offender until affirmed by the appellate court. Joyner v. State, 158 Fla. 806, 30 So. 2d 304 (1947). Defendant’s second point in this case is moot in light of the foregoing.
In conclusion, we reverse defendant’s convictions of larceny of an automobile and of being a subsequent felony offender and remand for a new trial, as to case No. 620 only.
REVERSED AND REMANDED FOR A NEW TRIAL IN CASE NO. 620.
REVERSED AS TO CASE NO. 1009.
DOWNEY, J., and ULMER, RAY E., Jr., Associate Judge, concur,
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Peek v. State, 395 So. 2d 492 (Fla. 1980)…on 921.141(5)(b) are similar-to enhance punishment due to prior criminal convictions. Under section 775.084, a prior conviction is not final until appellate review has concluded. Joyner v. State, 158 Fla. 806, 30 So. 2d 304 (1947); Garrett v. State, 335 So. 2d 876 (Fla. 4th DCA 1976); Coleman v. State, 281 So. 2d 226 (Fla. 2d DCA 1973). In view of the similarity in underlying philosophy between the two statutes, and in view of the awesome finality of the death penalty, I would hold that for purposes of sectio…
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State v. Villafane, 444 So. 2d 71 (Fla. 4th DCA 1984)…ime the habitual offender information was filed and at end of trial, (and because of another defect not pertinent here), the supreme court reversed the judgment of conviction. This court followed Joyner and came to a like result in Garrett v. State, 335 So. 2d 876 (Fla. 4th DCA 1976). Reversal of defendant’s conviction as a subsequent felony offender was justified as follows: His being a subsequent felony offender was based upon his conviction of larceny of an automobile .... Since defendant had taken an app…
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Ezekiel Peterson v. State, 651 So. 2d 781 (Fla. 4th DCA 1995)…as recognized in State v. Barnes, 595 So. 2d 22 (Fla.1992); see also Breeze v. State, 641 So. 2d 450 (Fla. 1st DCA 1994); Baxter v. State, 617 So. 2d 338 (Fla. 1st DCA 1993); Delguidice v. State, 554 So. 2d 35 (Fla. 4th DCA 1990); Garrett v. State, 335 So. 2d 876 (Fla. 4th DCA 1976); see also State v. Villa- [*783] fane, 444 So. 2d 71 (Fla. 4th DCA 1984) (applying enhancement of punishment rule to enhancement of crime charged). Under these habitualized offender cases, the fact that the prior convictions are…
Previewing 3 of 8 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Richardson v. State, 246 So. 2d 771 (Fla. 1971)
- Brown v. State, 206 So. 2d 377 (Fla. 1968)
- Joyner v. State, 158 Fla. 806 (Fla. 1947)
- State v. Terry, 336 So. 2d 65 (Fla. 1976)
- Wright v. State, 216 So. 2d 229 (Fla. 2d DCA 1968)
- COX v. State, 243 So. 2d 611 (Fla. 3d DCA 1971)