Opinion
No. WW-55.
April 10, 1981. On Rehearing July 9, 1981.
Appeal from the Circuit Court, Duval County, Ralph W. Nimmons, Jr., J.
Michael J. Minerva, Public Defender, Melanie Hines Alford, Asst. Public Defender and David S. Markus, Legal Intern, for appellant.
Jim Smith, Atty. Gen., and David P. Gauldin, Asst. Atty. Gen., for appellee.
Appellant was convicted of armed robbery and appeals. He contends that the trial court erred in admitting evidence of another crime and erred in denying his request that the jury be charged on penalties. We affirm.
The State presented the testimony of two tellers of the Duval Federal Savings and Loan of Neptune Beach (Duval Federal) that on December 5, 1979, appellant approached one of the tellers' window, pulled a small silver handgun from his right coat pocket, took a paper bag from his left coat pocket, and ordered them to give him money. Both tellers had received FBI training in observation techniques, and while complying with the demands, they concentrated their efforts on observing and memorizing the robber's facial characteristics. They observed him from a distance of two to six feet. Also during the robbery, which lasted for approximately three minutes, two surveillance cameras located behind the teller area took pictures of the robbery. The video tapes were offered in evidence by the State and admitted.
Over the objection of appellant, the court allowed Geraldine Johnson, the branch manager of another bank, to testify that on December 17, 1979, the bank in which she worked was robbed in a similar manner by a gunman she identified as appellant. The court ruled that her testimony was admissible because it was relevant and material to the issue of identity and instructed the jury that the sole purpose of her testimony was to show identification. The testimony in relation to the two separate robberies was that (1) in each case, the gunman wore the same clothing; (2) the physical characteristics of the gunman in both instances were the same; (3) in each robbery, the assailant removed a silver gun from his right pocket and a bag from his left; (4) the assailant in each case wore a "beanie hat"; (5) in each case the assailant initiated the robbery by asking for a roll of coins and (6) appellant was the perpetrator of both crimes.
Appellant's defense at trial was alibi and he contested the issue of identity throughout the trial. On appeal, however, he now argues that the identity of the robber was not an issue in the case; that he was identified in the Duval Federal robbery by the two eyewitnesses and the pictures; that identity then was no longer an issue in the case and it, therefore, was error to admit evidence of the other robbery. He overlooks the fact that his defense was, and continued to be, alibi, which necessarily made identity an issue throughout the whole trial. The similar fact evidence was admissible to bolster the other identification evidence which was presented. Williams v. State, 117 So.2d 473 (Fla. 1960).
As to appellant's contention that it was reversible error for the trial court to deny his request to instruct on penalties pursuant to Florida Rule of Criminal Procedure 3.390(a), the Supreme Court in Tascano v. State, 393 So.2d 540 (Fla. 1980), ruled that pursuant to the aforesaid Rule 3.390(a), it is mandatory that instruction be given on the maximum and minimum sentences which may be imposed upon defendant upon request being made therefor. Here, however, appellant did not preserve the point for review by objecting to the court's denial of the requested instruction. See Florida Rule of Criminal Procedure 3.390(d); Kelly v. State, 389 So.2d 250 (Fla.2d DCA 1980); and Bailey v. State, 393 So.2d 24 (Fla.3d DCA 1981).
AFFIRMED.
LARRY G. SMITH, J., and LILES, WOODIE A., (Retired) Associate Judge, concur.
ON MOTION FOR REHEARING
Upon consideration of appellant's motion for rehearing and further review of the record in this cause, we find that the colloquy between the trial court and appellant at the time appellant requested the court to instruct the jury on penalties pursuant to Florida Rule of Criminal Procedure 3.390(a) does indicate an objection on the record to the failure of the trial court to give such instruction. We, therefore, vacate our previous affirmance. Appellee contended in its brief on the merits that we should not reverse the trial court on the basis of Tascano v. State, 393 So.2d 540 (Fla. 1980), but should find that any error in the trial court's refusal to give appellant's requested charge on penalties was harmless error because of the overwhelming evidence of guilt in the case.
From our interpretation of the Tascano ruling, in conjunction with Justice Alderman's dissent thereto, the trial court's error in this respect cannot be deemed harmless. The Supreme Court held this instruction to be mandatory. We, therefore, must reverse and remand for a new trial. However, we certify to the Supreme Court of Florida that the following question is of great public importance:
Does the harmless error doctrine, as enunciated by § 59.041, Florida Statutes (1979), apply to refusal of the trial court to instruct on the maximum and minimum sentences which may be imposed for the offense for which the accused is then on trial pursuant to Florida Rule of Criminal Procedure 3.390(a)?
The motion for rehearing is granted.
Reversed and remanded for a new trial with the above-posed question being certified to the Supreme Court.
LILES, WOODIE A., Associate Judge (Retired), concurs, LARRY G. SMITH, J., dissents.