Summary
finding prior identification admissible even though declarant testified at trial that he possessed neither past nor present ability to identify defendant
Summary of this case from Polite v. StateOpinion
No. 83-2270.
April 17, 1984.
Appeal from the Circuit Court for Dade County, Ralph B. Ferguson, Jr., J.
Bennett H. Brummer, Public Defender and Beth C. Weitzner, Asst. Public Defender, for appellant.
Jim Smith, Atty. Gen. and Julie S. Thornton, Asst. Atty. Gen., for appellee.
Before HENDRY, BARKDULL and DANIEL S. PEARSON, JJ.
A.T. appeals his conviction of theft and subsequent adjudication of delinquency. Pedro Borges' grandson owned a motorcycle which was kept in Pedro's garage. On the morning of May 30, 1983, some children were walking back and forth in front of Pedro's house. Pedro left the house about noon. When Pedro returned an hour later he discovered that his grandson's motorcycle was missing. Pedro reported this to the police. Later that afternoon Officer Moore stopped two youths on a motorcycle because the passenger, A.T., had no helmet. The driver had no driver's license or vehicle registration. When Officer Moore inquired, the driver said a friend loaned him the motorcycle. According to Officer Moore, A.T. concurred with this statement by nodding his head or mumbling yes.
Pedro Borges saw A.T. in the police car after this incident. Officer Moore testified at trial that on May 30th, Pedro had positively identified A.T. as one of the children who had been walking past his house that morning. At trial Pedro testified that he had neither the past nor present ability to identify A.T., stating that he was not "on watch" that day and at most could only state that A.T. was about the same size as the children who were around the house. Pedro did not actually deny having made the identification Officer Moore claimed he made. A.T.'s attorney did not cross-examine Pedro.
We find no error in the admission of Officer Moore's testimony concerning the extra judicial identification by Pedro. Webb v. State, 426 So.2d 1033 (Fla. 5th DCA 1983); Brown v. State, 413 So.2d 414 (Fla. 5th DCA 1982); Sections 90.801, 90.803 and 90.806 Florida Statutes (1983). However, we find the evidence that the appellant was guilty of theft to be insufficient. Danek v. State, 429 So.2d 1369 (Fla. 3d DCA 1983); B.L.W. v. State, 393 So.2d 59 (Fla. 3 DCA 1981).
Therefore for the reasons above stated the adjudication of delinquency under review be and the same is hereby reversed with directions to discharge the appellant.
Reversed and remanded with directions.