ALBERT LOUIS HARVEY AND JACK W. DONALDSON, APPELLANTS,
v.
STATE OF FLORIDA, APPELLEE
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Harvey and Donaldson appealed their convictions for robbing Dominguez, arguing insufficient evidence of identity and that the trial court erred in denying their motion for a new trial based on newly discovered evidence. The Florida Supreme Court affirmed the convictions, holding that the victim's positive identification, corroborated by state testimony, was sufficient to support the jury's verdict, and that the appellants failed to meet the stringent requirements for a new trial based on newly discovered evidence.
The court affirmed the convictions, holding that the victim's positive identification, corroborated by state testimony, was amply sufficient to establish the appellants' identity as the robbers if believed by the jury, and that the appellants failed to satisfy the requirements for a new trial based on newly discovered evidence because the evidence was not discovered after trial and they failed to show due diligence in locating the witness.
“The jury resolved the conflicts in the evidence against the appellants, and this court has no authority to substitute its conclusions for that of the jury in this respect.”
Establishes the standard of review for appellate courts in evaluating jury verdicts on factual matters.
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Join FLexlaw to unlock all legal intelligenceDominguez testified that appellants Harvey and Donaldson assaulted and robbed him. A State's witness corroborated the circumstances leading up to the …
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ROBERTS, Justice.
In this appeal from judgments convicting appellants of the robbery of one Dominguez, the appellants contend that they are entitled to a new trial because of the insufficiency of the evidence to prove beyond a reasonable doubt their identity as Dominguez’s assailants.
Dominguez testified positively that the appellants were the ones who assaulted and robbed him, and his testimony as to the circumstances leading up to the robbery was corroborated by a State’s witness. The appellants admitted that they were with Dominguez prior to the time the robbery occurred, but sought to establish an alibi. The jury resolved the conflicts in the evidence against the appellants, and this court has no authority to substitute its conclusions for that of the jury in this respect. The evidence adduced by the State was amply sufficient, if believed by the jury, to establish the identity of the appellants as the robbers. Accordingly, this contention cannot be sustained.
The appellants also contend that the trial judge erred in refusing to grant them a new trial on the ground of newly discovered evidence. The rule in this respect has been recently restated in McVeigh v. State, Fla.1954, 73 So. 2d 694, 698, as follows:
“This court is committed to the rule that a new trial will not be granted for newly discovered evidence unless such evidence was discovered after the former trial, that due diligence must have been shown to have it at the former trial, that it must be material to the issue, it must go to the merits of the case, it must not be cumulative and it must be such as would produce a different verdict”.
The ground of appellants’ motion in this respect was that a material witness, who would have testified that appellants “were at another place at the time the alleged crime was committed”, was in another state at the time of trial and that “his whereabouts were ascertained too late to get him to Tampa on the trial date.” It can thus be seen that the evidence was not “discovered after the former trial,” nor is there anything in the record to show that the appellants used “due diligence” to have this evidence presented at the trial. If, in fact, the witness would have testified that the appellants were aboard their ship at the time of the robbery, as here stated by appellants (and we have only their word for it), it cannot be said with any certainty that the jury’s verdict would have been any different. It was not, therefore, error to deny the motion for new trial.
We have also considered the remarks of the trial judge alleged to have been prejudicial but find no reversible error. For the reasons stated, the judgments appealed from should be and they are hereby
Affirmed.
DREW, C. J., and THOMAS and O’CONNELL, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (19 total)
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Clark v. State, 379 So. 2d 97 (Fla. 1979)…t the former trial, unless the evidence goes to the merits of the cause and not merely to impeach a witness who testified, unless the evidence is not cumulative, and unless it is such that it probably would have changed the verdict. Harvey v. State, 87 So. 2d 582 (Fla.1956); McVeigh v. State, 73 So. 2d 694 (Fla.1954); Branch v. State, 96 Fla. 307, 118 So. 13 (1928); Hudson v. State, 353 So. 2d 633 (Fla. 3d DCA 1977). The evidence upon which Clark relied to support his motion for a new trial, in reality, was…
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Baker v. State, 336 So. 2d 364 (Fla. 1976)…vidence was attributable to a lack of diligence. In this respect, the present case resembles Keaton v. State, 273 [*370] So. 2d 385 (Fla.1973) and Douth v. State, 85 So. 2d 550 (Fla.1956), and should be distinguished from cases like Harvey v. State, 87 So. 2d 582 (Fla.1956), and Luster v. State, 262 So. 2d 910 (Fla.App.3d 1972). In Florida, as elsewhere, “the rule is that the ‘confession’ of a third person is grounds for a motion for new trial, but does not compel the trial judge to grant a new trial.” Fast…
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Douglas v. State, 328 So. 2d 18 (Fla. 1976)…Court are hereby affirmed. It is so ordered. ADKINS, C. J., ROBERTS and OVER-TON, JJ., and HENSLEY and MELVIN, Circuit Court Judges, concur. ENGLAND, J., dissents with an opinion. . 64 Fla. 437, 60 So. 118 (1912). . 301 So. 2d 7 (Fla.1974). . 87 So. 2d 582 (Fla.1956). . 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972). . 283 So. 2d 1 (Fla.1973). . Supra.…
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- McVEIGH v. State, 73 So. 2d 694 (Fla. 1954)