Florida District Courts of Appeal, 1976

Burns v. State

Burns v. State
Florida District Courts of Appeal · Decided February 6, 1976 · Cross, Owen, Walden
326 So. 2d 195; 1976 Fla. App. LEXIS 14271 (Southern Reporter, Second Series)

Burns v. State

Dissenting Opinion

WALDEN, Chief Judge

(dissenting):

I would reverse and remand for a new trial on the basis that appellant’s first point is meritorious, it being:

Whether the trial court erred in admitting testimony of a prior collateral offense to prove identity when identity was no longer an issue, when the prior offense took place more than eight months before the instant offense, and when the only similarity between the two offenses was the alleged victim ?

Agreeing that identity was an issue, it is my view that there is yet another critical criteria that was not met here — the two crimes were not similar. I would reverse upon authority of Clingan v. State, 317 So.2d 863 (Fla.App. 2nd, 1975); Marion v. State, 283 So.2d 53 (Fla.App. 4th, 1973).

Opinion of the Court

PER CURIAM.

Affirmed.

*196CROSS and OWEN, JJ., concur. WALDEN, C. J., dissents, with opinion.

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