Diehl v. State

200 So. 2d 240 | Fla. Dist. Ct. App. | 1967

Lead Opinion

PER CURIAM.

The defendant below appeals from his conviction of the crime of larceny of an automobile. The several contentions of the appellant having been considered in the light of the record and briefs, and no reversible error having been made to appear, we affirm. The fact that the defendant was not represented by counsel at the preliminary hearing is not ground for reversal. Di Bona v. State, Fla.App. 1960, 121 So.2d 192. No prejudice was shown to have resulted. The defendant subsequently pleaded not guilty, waived a jury and was tried before the court. The transcript of proceedings on preliminary hearing was not presented in evidence at the trial. See Brookins v. State, Fla.App.1965, 174 So.2d 578. As an insolvent, the defendant was represented at the trial by the office of the public defender. In that status he was not entitled to choose counsel. Wilder v. State, Fla.App. 1963, 156 So.2d 395. The contention of the appellant that the evidence did not establish the elements of the crime and was insufficient to support the conviction, is without merit. The trier of the facts, the trial judge in this case, was entitled to judge the weight of the evidence and the credibility of the witnesses and to resolve the conflicts in the evidence. We must assume the trial judge believed the credible testimony which was adverse to the defendant, and his finding of guilt of the defendant is entitled to the weight of a jury verdict. The evidence disclosed in the record, which the trial judge was entitled to accept and act upon, was ample to support his finding and adjudication of guilt in this case.

Affirmed.

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Dissenting Opinion

PEARSON, Judge

(dissenting).

I must respectfully dissent since I feel that the evidence was insufficient to show that this defendant was the person who took the car. See Flowers v. State, 106 Fla. 686, 143 So. 612 (1932).