
    Thomas NOWLIN, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 74-599.
    District Court of Appeal of Florida, Fourth District.
    Jan. 10, 1975.
    
      Emmett A. Moran, P. A., Altamonte Springs, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Basil S. Diamond, Asst. Atty. Gen., West Palm Beach, for appellee.
   DOWNEY, Judge.

From our consideration of the briefs and record in this cause we are not persuaded that the points raised by appellant demonstrate error. In any event, if there was any error it was harmless. Section 924.33, F.S., 1973; McDonnell v. State, Fla.App.1974, 292 So.2d 420.

Although not raised, we take note of the sentence as fundamental error. Appellant was convicted of robbery, use of a firearm in the commission of a felony and aggravated assault and sentenced to concurrent sentences of life imprisonment, IS years and 5 years, respectively. Since all three charges were but facets and the same transaction, appellant should have been sentenced on the robbery count only. Cone v. State, Fla.1973, 285 So.2d 12. Accordingly, the sentences for use of a firearm in the commission of a felony and aggravated assault are vacated. In all other respects the judgment and sentence appealed from is affirmed.

Affirmed in part and reversed in part.

MAGER, J., concurs.

ALDERMAN, JAMES E., Associate Judge, dissents, with opinion.

ALDERMAN, JAMES E., Associate Judge

(dissenting):

Appellant was shot by a police officer during the course of a robbery. In the hospital, while in custody, he was interviewed on two occasions by police officers and made incriminating statements. A proffer of these statements was made by the State during its case in chief. However, the State voluntarily withdrew its proffer, apparently because the statements would have been inadmissible under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, 10 ALR 3d 974 (1966). The statements were obtained while the appellant was in custody prior to his-having or effectively waiving counsel.

Appellant thereafter elected to take the stand and testified on his own behalf. His testimony conflicted with the State’s version of the robbery. If the jury believed his story he most likely would have been acquitted. On cross-examination he denied ever having admitted that he was guilty of committing the robbery.

On rebuttal the State offered in evidence the testimony of the officers who had taken the incriminating statements from appellant while he was in the hospital. Appellant objected upon the grounds that there was no showing that the statements were voluntarily given. The trial court overruled his objection and allowed the testimony on rebuttal, citing Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed. 2d 1 (1971). The trial judge apparently was of the opinion that the question of voluntariness was irrelevant at that point and allowed no further inquiry as to the voluntariness of the statement.

The statements were inadmissible during the State’s case in chief because they were obtained while appellant was in custody prior to having or effectively waiving counsel. Miranda v. Arizona, supra. If Miranda were the only criterion by which we measured trustworthiness of confessions there would be no doubt that under Harris v. New York, supra, the statements in question would be admissible for the purpose of rebuttal. However there are other elements which must be considered and weighed before we can say that evidence of a statement or confession satisfies legal standards. This was recognized by Chief Justice Burger in his Opinion in Harris v. New York, supra, when he said:

“It does not follow from Miranda that evidence inadmissible against an accused in the prosecution’s case in chief is barred for all purposes, provided of course that the trustworthiness of the evidence satisfies legal standards.” (Italics added)

I wholeheartedly agree that a criminal defendant’s privilege to testify in his own defense cannot be construed to include the right to commit perjury and certainly a defendant who voluntarily takes the stand is under an obligation to speak truthfully and accurately. A defendant should not be allowed to use perjury by way of a defense, free from the risk of confrontation with prior inconsistent statements.

By the same token however a defendant who takes the stand to testify should not, in my opinion, be impeached by a statement which was involuntarily obtained from him. An extreme example of what I am talking about would be a confession obtained while the defendant was drugged or intoxicated to the extent that he did not know what he was saying, or a confession coerced from the defendant by torture or threat of torture.

I believe the State has the burden of establishing “voluntariness” of a confession or statements even when used only for rebuttal under Harris v. New York, supra. Before admitting any such evidence the trial judge should first determine that the trustworthiness of the proffered evidence satisfies legal standards.

In my opinion the trial judge below misconstrued the effect of Harris v. New York, supra. The effect of Harris is to excuse the State from compliance with Miranda, but it does not allow the State to use every statement or confession on rebuttal without any showing that such evidence satisfies legal standards. Perhaps the State could have very easily have shown in this case that the “trustworthiness of the evidence satisfied legal standards.” However no such showing was required and appellant was prohibited from challenging the incriminating statements. When the State withdrew its proffer of the evidence during its case in chief there was no need for appellant to challenge its trustworthiness. When it was offered on rebuttal appellant was not allowed to challenge its trustworthiness.

I can not say that the error in 'this case was harmless. I would, therefore, reverse and remand with instructions that appellant be granted a new trial.

ON PETITIONS FOR REHEARING

DOWNEY, Judge.

We are presented with the anomalous situation of both appellant and appellee petitioning for a rehearing.

We previously affirmed the judgment of conviction in this case but reversed the sentences as violating the “facets of the same transaction rule.”

Appellant was charged in four counts with robbery, use of a firearm in the commission of a felony, and two counts of aggravated assault. One aggravated assault count involved the victim of the robbery, the other involved a policeman who came upon the scene after the robbery. Appellant was convicted of robbery, use of a firearm in the commission of a felony, and of the aggravated assault count involving the robbery victim. He was acquitted of the aggravated assault count involving the police officer. The court sentenced appellant to serve consecutive sentences of life imprisonment, fifteen years and five years.

The state maintains that assault with intent to commit a felony and robbery are not part of the same transaction, relying upon Davis v. State, Fla.App.1974, 295 So.2d 124; and Still v. State, Fla.App.1974, 296 So.2d 67. We fail to find support for that proposition' in the Davis case and we disagree with the breadth of the statement in Still. From the opinion in the latter case one cannot determine the factual setting for the charges involved.

In the case at bar, if appellant had been convicted on the count involving aggravated assault upon the police officer, we would be dealing with a separate criminal act not involved in the same transaction. That alleged assault took place after the transaction involving the robbery, the use of a firearm in the commission of a felony, and the assault upon the robbery victim. However, the robbery and the use of the firearm therein make up the very acts which constitute the aggravated assault upon the robbery victim. Thus, we maintain they are all but facets of the same transaction and appellant is properly sentenced only for the highest offense. See Edmond v. State, Fla.App. 1973, 280 So.2d 449, and Judge Mann’s exposition of the basis for the rule in question,

We have also considered appellant’s petition for rehearing and find it to be without merit.

Accordingly, the petitions for rehearing filed by appellant and appellee are denied.

MAGER, J., concurs.

ALDERMAN, JAMES E., Associate Judge, dissents, with opinion.

ALDERMAN, JAMES ' E., Associate Judge

(dissenting).

I concur with Judge Downey’s opinion that the Petition for Re-Hearing of the ap-pellee, State of Florida, should be denied. If the convictions are to be affirmed the appellant may be properly sentenced only for the highest offense.

However, I believe appellant’s Petition for Re-Hearing should be granted. In addition to the reasons set out in my dissent previously filed herein, appellant has brought to the court’s attention the case of Crawford v. State (1915), 70 Fla. 323, 70 So. 374. Sixty years ago, the Florida Supreme Court in .Crawford held an involuntary confession of a defendant inadmissible as evidence against him, even though he takes the stand as a witness in his own behalf, and the involuntary confession is sought to be used for the purpose of impeaching him as a witness. The words of Justice Ellis in that case are as true today as they were in 1915. Speaking for the Court he said:

“. . . . An involuntary confession, however, is inadmissible against the prisoner on the trial. It is so considered because, having been made under compulsion, it is unworthy of belief, and was obtained in violation of the prisoner’s constitutional rights. May it reasonably be contended that, because the prisoner at a later time, namely, at the trial, avails himself of the privilege of becoming a witness in his own behalf, he thereby imports to his former statements a virtue that they did not possess when made? The object of the prosecution is to get before the jury the confession of the prisoner; it cannot be done before the prisoner takes the stand as a witness, because it was extorted from him, he gave it under compulsion, he was deprived of his constitutional rights; it would therefore be unfair and unjust to him, besides being considered in law unworthy of belief. May such a confession be used nevertheless for purposes of impeachment, and thereby accomplish indirectly what could not be accomplished directly? The jury would hear the confession just the same, and it would have its effect in convicting the defendant just as if it had been admitted as part of the state’s case in chief.
There is little or no difference in effect upon the jury, whether the confession is admitted as part of the state’s case in chief, or later during the trial to impeach the testimony of the defendant; the jury hears it and acts upon it, and the consequences to the defendant are the same; his legal rights as a prisoner are thus violated, and his conviction unlawfully obtained. We do not approve the narrow reason which seeks to justify the admission in evidence of a confession unlawfully obtained but hold that, being inadmissible as evidence against the defendant in the one case, it is inadmissible as evidence against him in the other. His becoming a witness in his own behalf does not change its unlawful character, nor does he thereby waive his right to its exclusion. . . . ”

Crawford has not been overruled and in my opinion the language quoted above is a correct statement of the law of Florida.  