ARCHIE L. STUDSTILL, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Archie Studstill was convicted of two counts of kidnapping, two counts of sexual battery, and one count of robbery, and sentenced to life imprisonment with eligibility for probation after 15 years. The appellate court affirmed the conviction and sentence, rejecting his arguments that the trial judge erred in excluding evidence of an inconsistent statement and that his sentence exceeded statutory maximums.
The trial court did not err in refusing to admit the testimony because appellant failed to establish the proper predicate by first asking the state's witness whether he made the allegedly inconsistent statement. Additionally, the sentence does not exceed the statutory maximum because the period of probation is applied after the prison term expires and does not extend the total maximum sentence beyond life imprisonment.
[1] A prior inconsistent statement of a witness is inadmissible unless the witness is afforded an opportunity to explain, admit, or deny making the statement.
[2] A sentence of life imprisonment followed by probation for life does not exceed the statutory maximum of a life sentence.
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Join FLexlaw to unlock all legal intelligence“There was no error in refusing to permit testimony of the alleged inconsistent statement in the absence of a proper predicate.”
Establishes that the trial court properly applied the predicate requirement for admitting prior inconsistent statements.
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Join FLexlaw to unlock all legal intelligenceAppellant was convicted of two counts of kidnapping, two counts of sexual battery, and one count of robbery. He received a sentence of life imprisonme…
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ORFINGER, Judge.
Appellant was convicted of two counts of kidnapping,1 two counts of sexual battery,2 and one count of robbery.3 He was sentenced to a term of life imprisonment upon the condition that after he had served fifteen years of said term he would be placed on probation for life. He appeals. We affirm. Appellant first says that the trial judge erred in not permitting him to ask a defense witness about a prior inconsistent statement allegedly made by a state witness, but appellant concedes that the state’s witness was not asked if he had made the supposedly inconsistent statement.4 There was no error in refusing to permit testimony of the alleged inconsistent statement in the absence of a proper predicate.
Appellant next contends that the life sentence given him exceeds the statutory maximum because of the fifteen-year incarceration, followed by probation for life. He characterizes it as being greater than a life sentence, although recognizing the penalty for the crimes for which he was convicted can be life imprisonment. The period of probation would be for the remainder of appellant’s life following the expiration of the prison term, so it does not, nor could it, exceed a life sentence. Cf. Alvarez v. State, 358 So. 2d 10 (Fla.1978). There is no merit to this point.
At oral argument, appellant contended that the recent decision of Villery v. Florida Parole and Probation Commission, 396 So. 2d 1107 (Fla.1980), applies to this case and should be followed. Appellant did not raise as a point on this appeal the length of his prison term as it applied to his subsequent probation, but only contended that the prison term and subsequent probation exceeded the total maximum sentence authorized by law. Thus, any issue potentially raised by Villery has not been preserved for appeal.
We affirm the judgment of conviction and sentence without prejudice to the right of appellant to apply to the trial court for such collateral relief as he may deem proper. AFFIRMED.
DAUKSCH, C. J., and COWART, J., concur. . § 787.01(l)(a)2, Fla.Stat. (1979).
. § 794.011(3), Fla.Stat. (1979).
. §§ 812.13(1) and 812.13(2)(a), Fla.Stat. (1979).
. Section 90.614, Florida Statutes (1979), which codifies prior Florida law to the effect that before a prior inconsistent statement may be admitted in evidence, the witness allegedly making the statement must be asked if he made the statement and given the opportunity to explain, admit or deny making the statement. Hancock v. McDonald, 148 So. 2d 56 (Fla. 1st DCA 1963).
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Hoctor v. Tucker, 432 So. 2d 1352 (Fla. 5th DCA 1983)…statement must be asked if he made the statement and be given the opportunity to explain, admit or deny making the statement. Section 90.-614(2), Florida Statutes (1981); Hutchinson v. State, 397 So. 2d 1001 (Fla. 1st DCA 1981); Studstill v. State, 394 So. 2d 1040 (Fla. 5th DCA 1981). The same rule applied prior to the adoption of the Florida Evidence Code. See Hancock v. McDonald, 148 So. 2d 56 (Fla. 1st DCA 1963). Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1 (1971), does not contradict that…
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Thornes v. State, 485 So. 2d 1357 (Fla. 1st DCA 1986)…lorida Statutes (1983). See also Hutchinson v. State, 397 So. 2d 1001 (Fla. 1st DCA 1981); McGuire v. State, 411 So. 2d 939 (Fla. 4th [*1361] DCA 1982); Hoctor By and Through Hoctor v. Tucker, 432 So. 2d 1352 (Fla. 5th DCA 1983); Studstill v. State, 394 So. 2d 1040 (Fla. 5th DCA 1981); Ehrhardt, Florida Evidence, Section 614.1 (2nd Ed.1984). By reason of defense counsel’s premature termination of her cross-examination of Andrew regarding his encounter with his grandmother, we have no idea what Andrew would ha…
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Canada v. State, 394 So. 2d 567 (Fla. 5th DCA 1981)…trial court to give the requested instruction, so the issue has not been preserved for appeal. Appellant’s assertion that the sentence imposed exceeds the maximum permitted by law has been answered contrary to his contention in Studstill v. State, 394 So. 2d 1040 (Fla. 5th DCA 1981). Accordingly, the judgment and sentence of the trial court are affirmed. AFFIRMED. DAUKSCH, C. J., and EVANS, VERNON W., Associate Judge, concur.…
Authorities Cited
- Villery v. The Fla. Parole & Prob. Comm'n, 396 So. 2d 1107 (Fla. 1980)
- Alphonso Alvarez v. State, 358 So. 2d 10 (Fla. 1978)
- Hancock v. Morton and Thelma S. McDONALD and William Wilmer Frost, Jr., 148 So. 2d 56 (Fla. 1st DCA 1963)