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eBook details

• Title: Simmons v. State
• Author : Florida Court of Appeals
• Release Date : January 25, 2001
• Genre: Law,Books,Professional & Technical,
• Pages : * pages
• Size : 48 KB

Description

Anthony Simmons was tried by jury and convicted of strong arm robbery. Simmons appeals his conviction, arguing that the trial judge erred in allowing a detective to testify that, during his initial investigation, the victim stated that he was certain he would be able to identify his assailant if the assailant were found. Appellant also challenges the trial court's imposition of a habitual felony offender sentence because the existence of the predicate prior offenses was determined by the judge rather than the jury. We affirm both the conviction and the sentence. We agree with Simmons that the trial judge erred in admitting the detective's testimony as ""identification"" testimony, properly excluded from the definition of hearsay under section 90.801(2)(c), Florida Statutes (1999). The statements in the instant case were not ones of identification. Detective Carbo testified that the victim stated that he was confident that he could identify his assailant. This does not qualify as a statement of ""identification."" Typically, [The] situation contemplated by the code and the case law is one where the victim sees the assailant shortly after the criminal episode and says, ""that's the man."" Hence, the phrase ""identification of a person made after perceiving him"" refers to the witness seeing a person after the criminal episode and identifying that person as the offender. Stanford v. State, 576 So. 2d 737, 739-40 (Fla. 4th DCA)(footnote omitted), rev. denied, 587 So. 2d 1329 (Fla. 1991). Nevertheless, given the ample time during this encounter that the victim had to become aware of Simmons' physical features and the victim's own testimony at trial concerning the certainty of his identification of appellant, we find the error harmless. See Goodwin v. State, 751 So. 2d 537, 541 (Fla. 1999)(holding that harmless error test is satisfied when there is no reasonable possibility that the error contributed to the conviction).

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