Robinson v. State
2011 Fla. App. LEXIS 18105
Fla. Dist. Ct. App.2011Background
- Robinson pled no contest to grand theft and carrying a concealed weapon and was placed on 18 months of community control and 6 months probation.
- Probation required Robinson to live at liberty without violating any law.
- An affidavit alleged five new offenses during probation: three aggravated assaults, one discharge of a firearm in public, one firearm possession by a felon.
- At the probation violation hearing, eyewitness T.R. testified about the new offenses but could not recall identifying Robinson; a show-up identification and written statement later connected T.R. to the crimes.
- The court admitted testimony of prior out-of-court identifications under 90.801(2)(c); the court found two of the five new charges supported a willful probation violation.
- No formal written order specified which probation conditions were violated; the court remanded to enter a proper order.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was there sufficient evidence of probation violation? | Robinson | Robinson | Sufficient evidence supported violation |
| Does T.R.'s memory lapse recant prior identification invalidate the violation? | Robinson | Robinson | Madry distinguished; identification admissible; no recantation |
| Is the identification admissible under 90.801(2)(c) as a non-hearsay identification? | Robinson | Robinson | Identification admissible as non-hearsay under the statute |
| Was the probation revocation properly documented in a written order? | Robinson | Robinson | Remand for entry of a proper written order required |
| Was it improper to rely on the granted judgment of acquittal for one assault count as a basis for violation? | Robinson | Robinson | No merit; affirmed and remanded |
Key Cases Cited
- Madry v. State, 969 So.2d 507 (Fla. 1st DCA 2007) (distinguishes recantation with memory loss in identification issues)
- James v. State, 765 So.2d 763 (Fla. 1st DCA 2000) (memory loss not logically inconsistent with prior identification)
- Stanford v. State, 576 So.2d 737 (Fla. 4th DCA 1991) (identification of a person after perceiving him admissible and reliable)
- Liscinsky v. State, 700 So.2d 171 (Fla. 4th DCA 1997) (officer testimony identifying perpetrator after incident admissible)
- King v. State, 46 So.3d 1171 (Fla. 4th DCA 2010) (requirement of written order in probation revocation cases)
- Cato v. State, 845 So.2d 250 (Fla. 2d DCA 2003) (remand for entry of proper order when fatal defect exists)
- Davis v. State, 52 So.3d 52 (Fla. 1st DCA 2010) (hearsay exception applicability for identifications)