County Criminal Court: CRIMINAL LAW – Jury Trial/Evidence – Sufficiency of evidence- Venue- Identification – substantial, competent evidence was presented to support the findings of magistrate of defendant’s identification – venue is sufficiently proved is jury can reasonable infer from the evidence that the crime was committed in the alleged jurisdiction.  Judgment and Sentence affirmed.  Zomekka v. State, No. 03-19 (Fla. 6th Cir. App. Ct. April 3, 2003).

 

 

IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT

OF THE STATE OF FLORIDA, IN AND FOR PINELLAS COUNTY

APPELLATE DIVISION

STATE OF FLORIDA,

            Appellee,

 

vs.                                                       CASE NO.: 02-08059CFANO

 

ALFA ZOMEKKA,

            Appellant.

__________________________/

 

Opinion filed: ______________

Appeal from Order of Pinellas County Traffic Court

County Magistrate Charles Svoboda

 

Alfa Zomekka

Appellant

 

James Devito

Attorney for Appellee

 

ORDER AND OPINION

 

            THIS MATTER is before the Court on the defendant’s appeal from the traffic court order imposing fines and costs in the amount of $110.00.  After reviewing the briefs and record, this Court affirms the traffic court’s decision.

            On November 23, 2001, the defendant was charged with violation of Fla. Stat. §316.074(2).  The defendant pled not guilty and a non-jury trial was held on April 10, 2002 before Magistrate Charles Svoboda.  At the trial’s conclusion, the defendant was found guilty. 

The defendant appeals the finding of guilt arguing that there was no identification of the defendant as the person that committed the traffic infraction and that there was insufficient proof to establish venue.

The standard of review for a decision of law is de novo review.  Appellate courts must construe all the evidence and reasonable inferences therefrom in a manner most favorable to sustaining the trial court’s rulings.  Hines v. State, 737 So.2d 102 (Fla. 5th DCA 1992). 

“The prosecution must prove identification beyond a reasonable doubt just as they would be required to prove the various elements of the offense charged.”  Ross v. State, 190 So.2d 187 (Fla. 3d DCA 1966).  In this case, Officer Horinaopoulos with the St. Petersburg Beach Police Department referred to the defendant on several occasions and testified that he observed the defendant driving the taxicab.  Additionally, there was testimony that the defendant was identified by his driver’s license.  There was sufficient competent evidence to support the finding by the magistrate that the defendant was identified beyond a reasonable doubt.

The defendant also argues that the witnesses failed to establish venue.  The allegation in the charging document that the offense occurred within a named county is a material allegation of the charge which must be proved by the State.  Smith v. State, 29 Fla. 408, 10 So. 894 (1892).  However, unlike an essential element of the crime, venue need not be proved beyond a reasonable doubt.  See Ball v. State, 204 So.2d 523, 524 (Fla. 3d DCA 1967) (venue is sufficiently proved if the jury can reasonably infer from the evidence that the crime was committed in the alleged jurisdiction).

Although there was no direct testimony that the offense occurred in Pinellas County, Officer Horinaopoulos testified that Officer Herman was a new employee of St. Pete Beach.  There were references to commercial establishments in the area and the witnesses testified to the names of the roadways.  There was sufficient reference to the streets and landmarks for the magistrate to conclude that the offense occurred in Pinellas County. 

Accordingly, this Court finds that there is substantial competent evidence to support the magistrate’s finding of guilt.  It is therefore

ORDERED AND ADJUDGED that the traffic court’s order imposing $110.00 in fines and costs is affirmed.

DONE AND ORDERED in Chambers, at Clearwater, Pinellas County, Florida this _____ day of __________________, 2003.

 

 

___________________________________

JOHN A. SCHAEFER

Primary Appellate

Circuit Judge

 

 

____________________________________

W. DOUGLAS BAIRD

Circuit Judge

 

 

____________________________________

NANCY MOATE LEY

Circuit Judge

Copies furnished to

 

Magistrate Charles Svoboda

 

Alfa Zomekka

P.O. Box 173622

Tampa, FL 33672

 

James Devito

7243 Bryan Dairy Road

Largo, FL 33777