Hutchins v. StateHutchins v. State
Robert L. Shevin, Atty. Gen., and William L. Rogers, Asst. Atty. Gen., for appellee.
Before CHARLES CARROLL, HENDRY and HAVERFIELD, JJ.
The appellant was informed against, tried by a jury and convicted of unlawful possession of a narcotic drug, a felony. See
By a pretrial order reciting that it had been ascertained by the court that Melvin Brewer, a laboratory technician whose testimony was desired to be presented by the state at trial, would be “unavailable to appear at the Courthouse for the taking of his testimony in the above styled cause on the date set for trial,” the court made provision for the testimony of said witness to be obtained and preserved by being taken and recorded on video tape. The order included details respecting the taking of the deposition by video tape, with direction that it be so taken in duplicate in order for a copy to be made available to counsel for the defendant, with provision for presence of the defendant and his counsel, and directions for the preservation and security of the master tape for presentation at trial.
Objections thereto by the defendant were considered and denied. They did not include a challenge or objection to the finding as to unavailability of the witness for testimony at trial.
The provision for the commission for the taking and preservation of the testimony of the witness was made pursuant to
It will be noted that while the provision last referred to authorizes the deposition testimony of a deponent to be taken or recorded by mechanical means, the rule appears to contemplate that the record thereof when so taken will be transcribed (for subsequent use at trial as if recorded stenographically). The difference in the instant case is that the deposition testimony taken by video tape was not submitted at trial in transcribed form, but was presented in the form of the video tape recording.
The appellant contends such video tape presentation of the evidence was prejudicial error because there was no authority or precedent for the preservation and presentation of the testimony by video tape, and because by its use the defendant was deprived of his right to confront the witness at time of trial. In response thereto the state argues that notwithstanding absence of express precedent or authority to present the testimony in that manner, no harmful error resulted since it accurately portrayed the testimony as given. By the presence of the defendant and his counsel at the deposition, the right of confrontation and cross-examination was available there. The state points out that the defendant would have been equally deprived of the right of confrontation at time of trial if the deposition testimony had been reported stenographically and presented in transcribed form. Additionally, the state argues that the presentation of testimony by video tape, rather than by written transcription, enabled the trier of fact to better judge the credibility of the witness, by affording opportunity to observe the manner and demeanor of the witness while testifying.
If the previously taken and preserved testimony of the witness, unable to be present was admissible at the trial, it has not been shown how its submission by video tape, as distinguished from a written transcription of the questions and answers, resulted in harmful error. Where not otherwise prejudicial, the use of sound moving pictures, as a scientific advance in presentation of evidentiary matter at trials, has generally been viewed with approval. See Cox v. State, Fla.App. 1969, 219 So.2d 762; Paramore v. State, Fla. 1969, 229 So.2d 855; People v. Hayes, 21 Cal. App.2d 320, 71 P.2d 321; Commonwealth v. Roller, 100 Pa.Super. 125.
Accordingly, we affirm the judgment of conviction, but we find error in the sentence, in the respect set out below.
No contention of invalidity of the sentence was argued in the brief. However, we regard an illegal sentence, or illegal part of a sentence, where it appears on an appeal, to be a matter within the scope of appellate review under
Here the portion of the sentence which made provision for probation for a period of three years, to follow after the serving of the ten month sentence in the county jail, was unauthorized and improper, for the reasons set out in Williams v. State, Fla.App. 1973, 280 So.2d 518. In Williams it was pointed out that the authority granted by
The judgment is affirmed. The sentence is modified to eliminate therefrom the provision for probation.
It is so ordered.