STATE OF FLORIDA, APPELLANT,
v.
BETTY J. ARMSTRONG, APPELLEE
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The trial court erred in dismissing grand larceny charges based on the non-availability of the allegedly stolen cigarettes as evidence.
Betty J. Armstrong was charged with grand larceny of cigarettes. The allegedly stolen cigarettes were not retained for use as evidence. The trial cour…
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SCHEB, Judge.
The state appeals from the trial court’s order dismissing the grand larceny charge against Betty J. Armstrong. We reverse. Appellee Betty J. Armstrong and her co-defendant, Johnny Lee Armstrong, were charged by information with larceny of over one hundred dollars worth of cigarettes from Winn Dixie Stores, Inc. on September 28, 1977. Mr. Armstrong filed a motion to dismiss pursuant to Fla.R.Crim.P. 3.190(c)(4). At the hearing the parties agreed that Ms. Armstrong could join in the motion.1
From the motion it appeared the allegedly stolen cigarettes had not been retained for use as evidence. The trial judge reasoned that the nonavailability of the cigarettes would infringe upon Ms. Armstrong’s Sixth Amendment right of confrontation and dismissed the charges.
The confrontation provision of the Sixth Amendment is by its terms restricted to “witnesses” and does not encompass physical evidence as well. United States v. Herndon, 536 F. 2d 1027, 1029 (5th Cir. 1976). The trial judge therefore erred in his dismissal of the charges against Ms. Armstrong on the ground that the allegedly stolen cigarettes were not available to be used as evidence at trial.
We do not here deal with the question of whether appellee Armstrong has been deprived of her right to due process, which guarantees a defendant access to relevant and material evidence necessary for the preparation of his defense. See United States v. Herndon, supra. This issue was not raised in the trial court nor argued before this court.
The order of dismissal is vacated and the cause remanded for further proceedings consistent with this opinion.
BOARDMAN, Acting C. J., and OTT, J., concur. . In the motion Mr. Armstrong essentially disassociated himself from appellee’s activities who, one infers from the motion, did have possession of the cigarettes.
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State v. Farr, 558 So. 2d 437 (Fla. 4th DCA 1990)…ating the physical evidence that a crime has occurred. Although the confrontation clause of the Sixth Amendment refers to witnesses and does not encompass physical evidence, State v. T. L. W., 457 So. 2d 566 (Fla. 2d DCA 1984), State v. Armstrong, 363 So. 2d 38 (Fla. 2d DCA 1978), federal decisions hold that the due process clause of the Fifth Amendment and fundamental fairness entitles a defendant access to relevant and material evidence which is necessary to his defense. United States v. Herndon, 536 F.…
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In the Interest of G. E. G. v. State, 389 So. 2d 325 (Fla. 5th DCA 1980)…ce, is the witness which the accused can confront and cross-examine. The confrontation provision of the sixth amendment of the Constitution of the United States is restricted to “witnesses” and does not include physical evidence. State v. Armstrong, 363 So. 2d 38 (Fla.2d DCA 1978). In this case, the cannabis in question was available and counsel for the accused did cross-examine the State’s chemist. Therefore, we decline to follow Alexander and [*327] the appellant’s delinquency adjudication and commitment i…
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Strahorn v. State, 436 So. 2d 447 (Fla. 2d DCA 1983)…which might have proven that the marks had been caused by pebbles or some foreign object other than bullets. The defendant claims that he was denied his Sixth Amendment right of confrontation. We disagree. As this court noted in State v. Armstrong, 363 So. 2d 38, 39 (Fla. 2d DCA 1978), the Sixth Amendment confrontation provision “is by its terms restricted to ‘witnesses’ and does not encompass physical evidence as well.” Defendant also claims that the destruction of the evidence violated his right to due p…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- United States v. Herndon, 536 F.2d 1027 (5th Cir. 1976)