Opinion
No. AJ-162.
November 10, 1982. Rehearing Denied December 7, 1982.
Appeal from Circuit Court, Duval County; R. Hudson Olliff, Judge.
Michael Allen, Public Defender, Carl S. McGinness, Asst. Public Defender, Tallahassee, for appellant.
Jim Smith, Atty. Gen., Raymond L. Marky, Asst. Atty. Gen., Tallahassee, for appellee.
AFFIRMED. Williams v. State, 110 So.2d 654 (Fla. 1959).
SHIVERS and THOMPSON, JJ., concur.
ROBERT P. SMITH, Jr., C.J., dissents with opinion.
I would reverse the judgment of conviction and require a new trial. The "other crimes" evidence admitted at appellant's trial for burglary and robbery at the Ramada Inn on August 19, 1981, consisted of proof that appellant committed a similar robbery six days earlier at the same motel. On each occasion, appellant and a confederate knocked at the door of one of the motel rooms and robbed the woman occupant when she admitted them. On each occasion, but by different means, the perpetrators assured themselves that the male occupant was not in the room. In my opinion, this "other crimes" evidence proved nothing of consequence about the identity of the perpetrator of the August 19 crimes. Neither episode bore distinguishing characteristics; on the prior occasion, the intruders were masked, but on the latter occasion they were not. The two offenses were similar only in the ways many crimes of this character, committed by many different persons, are similar. The evidence, therefore, was not probative. Instead, it was highly prejudicial, and in my opinion it should have been excluded. Drake v. State, 400 So.2d 1217 (Fla. 1981). See also Cotita v. State, 381 So.2d 1146, 1151 (Fla. 1st DCA 1980) (dissenting opinion), pet. for rev. den., 392 So.2d 1373 (Fla. 1981).