Opinion
No. 98-1651
Opinion filed June 23, 1999 JANUARY TERM 1999
Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County; Edward A. Garrison, Judge; L.T. No. 97-11138 CFA02.
Richard L. Jorandby, Public Defender, and Mallorye G Cunningham, Assistant Public Defender, West Palm Beach, for appellant.
Robert A. Butterworth, Attorney General, Tallahassee, and Ettie Feistmann, Assistant Attorney General, West Palm Beach, for appellee.
Affirmed. While appellant claims that the trial court erred in instructing the jury over defense objection on improper exhibition of a weapon, a lesser included offense to aggravated assault, there was evidence presented at trial to support the instruction. See Wilcott v. State, 509 So.2d 261, 262 (Fla. 1987). Thus, no error occurred.
Secondly, there was no error in refusing to dismiss the case based on appellant's claim that the police destroyed exculpatory evidence. Since the trial court could not determine that the evidence would have been exculpatory, a due process violation justifying dismissal of the case would arise only if there is a finding of bad faith in failing to preserve evidence. See Merck v. State, 664 So.2d 939, 942 (Fla. 1995); State v. Daniels, 699 So.2d 837, 839 (Fla. 4th DCA 1997); State v. Erwin, 686 So.2d 688, 689 (Fla. 5th DCA 1996). Here, there was no showing whatsoever of any bad faith on the part of the state or the police.
Affirmed.
WARNER, KLEIN and TAYLOR, JJ., concur.