LEWIS B. HAYES, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Lewis Hayes appeals his conviction and sentence for second degree murder and robbery with a deadly weapon, challenging jury selection procedures, a police officer's testimony about his statement to police, and the trial court's post-sentencing order purporting to retain jurisdiction over him. The court affirms the conviction and sentence but reverses the court's retention of jurisdiction as exceeding its authority.
The court holds that: (1) the jury selection challenge was without merit; (2) the police officer's testimony did not violate Hayes's Fifth Amendment rights because Hayes did not invoke his right to remain silent but instead freely and voluntarily denied knowledge; and (3) the trial court lacked jurisdiction to retain jurisdiction over Hayes post-sentencing because such retention constitutes an unlawful enhancement of sentence in violation of the Fifth Amendment.
[1] A defendant's denial of knowledge of an incident after being advised of the right to remain silent does not constitute an invocation of the Fifth Amendment privilege agai…
[2] Testimony regarding a defendant's statement made after being advised of the right to remain silent is not reversible error if it was not elicited to show the defendant's…
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Join FLexlaw to unlock all legal intelligence“Defendant's free and voluntary denial of knowledge of the matter being inquired into, after being advised of his right to remain silent, was not an invocation of the Fifth Amendment privilege against incrimination.”
Establishes that a defendant's voluntary statement denying knowledge is distinguishable from invoking the right to remain silent, permitting police testimony about such statements.
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Join FLexlaw to unlock all legal intelligenceHayes was convicted of second degree murder and robbery with a deadly weapon. At trial, a police officer testified that he advised Hayes of his consti…
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FERGUSON, Judge.
From a conviction and sentence for second degree murder and robbery with a deadly weapon defendant appeals asserting three points as error:
(1) The denial of his challenge to the panel of prospective jurors where unlawful excusal forms were mailed to the jurors;
(2) the denial of a motion for mistrial where the police officer, in the presence of the jury, commented on the defendant’s exercise of his right to remain silent;
(3)the court’s entry of an order, after the time of sentencing, retaining jurisdiction over the defendant and failing to state the justification for the retention.
On examination of the record we find the first point to be without merit.
The police officer was called to the witness stand by the prosecutor. The officer testified that he advised the defendant of his constitutional rights, then asked him if he would answer questions without having an attorney present, and that in response defendant “denied any knowledge of the incident.” Defendant was taken to the police station where he gave a stenographically-recorded and signed confession.
Defendant’s free and voluntary denial of knowledge of the matter being inquired into, after being advised of his right to remain silent, was not an invocation of the Fifth Amendment privilege against incrimination. Williams v. State, 353 So. 2d 588 (Fla. 3d DCA 1977), cert. dismissed, 372 So. 2d 64 (Fla. 1979). The record before us demonstrates that defendant was afforded the opportunity but never exercised his right to remain silent. Ragland v. State, 358 So. 2d 100 (Fla. 3d DCA 1978), cert. denied, 365 So. 2d 714 (Fla. 1978). A crucial aspect of the testimony challenged herein is that it was not elicited to show defendant’s assertion of his right to remain silent. Kellerman v. State, 353 So. 2d 901 (Fla. 3d DCA 1977) (Nathan, J. specially concurring), aff’d on remand, 366 So. 2d 824 (Fla. 3d DCA 1979). No reversible error is shown.
It is undisputed that when defendant was sentenced on January 25, 1980 the trial court did not mention retaining jurisdiction. The court did announce retention of jurisdiction three weeks later. The recorded judgment and sentence contain a handwritten notation initialed and dated February 4, 1980, that the “court retains jurisdiction on this matter”. Section 947.16(3) Florida Statutes (1979) states in pertinent part:
Persons who have become eligible for parole and who may, according to the objective parole guidelines of the commission, be granted parole shall be placed on parole in accordance with the provisions of this law; except that, in any case of a person convicted of [enumerated felonies] . .., at the time of sentencing the judge may enter an order retaining jurisdiction over the offender for review of a commission release order . . . (emphasis added).
A court may reduce or modify a legal sentence within sixty days after such imposition, after which it is without jurisdiction. Fla.R.Crim.P. 3.800. But the rule is subject to constitutional limitations. Where a final conclusive judgment and sentence has been pronounced, the court may not recall the case and enhance the sentence for the reason that to do so subjects the defendant to double punishment for the same offense in violation of the Fifth Amendment to the Constitution. See, e.g., Troupe v. Rowe, 283 So. 2d 857 (Fla. 1973); Gonzalez v. State, 384 So. 2d 57 (Fla. 4th DCA 1980); Katz v. State, 335 So. 2d 608 (Fla. 2d DCA 1976). Section 947.16(3) gives a trial court veto power over parole and thus has the effect of enhancement of a sentence. State v. Williams, 397 So. 2d 663, (Fla. 1981). After defendant had been sentenced the trial court was without jurisdiction to retain jurisdiction for the purpose of reviewing a parole commission release order. The conviction and sentence are affirmed except that the modification whereby the court purports to retain jurisdiction is reversed. We remand to the trial court for the purpose of correcting the sentence accordingly.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Love v. State, 438 So. 2d 142 (Fla. 3d DCA 1983)…, however, is some action consistent with the exercise of the right to remain silent before a confession is given. We think the privilege against self-incrimination is waived after a full confession whether it is oral or written. See Hayes v. State, 400 So. 2d 519 (Fla. 3d DCA 1981) (after defendant was advised of his right to remain silent, his free and voluntary denial of knowledge of the matter being inquired into was not an invocation of the Fifth Amendment privilege). Cf. Turner v. State, 414 So. 2d 1161…
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Palmer v. State, 416 So. 2d 878 (Fla. 4th DCA 1982)…t third.” Then the court reduced its order to writing, in a manner consistent with the requirements of Section 947.16(3). It made no change or modification in the sentence as announced at the time of sentencing. Appellant relies upon Hayes v. State, 400 So. 2d 519 (Fla.3d DCA 1981), however, in Hayes, the trial judge did not mention retaining jurisdiction at the time of sentencing but rather placed a handwritten note on the judgment which was recorded later, “The court retains jurisdiction on this matter.” We…
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Neal v. State, 414 So. 2d 1146 (Fla. 3d DCA 1982)…d almost two months after sentence failed to comply with the statute. The court’s announcement two weeks after imposition of sentence that it intended to retain jurisdiction at a later date did not fulfill statutory requirements. See Hayes v. State, 400 So. 2d 519 (Fla. 3d DCA 1981); Knight v. State, 398 So. 2d 833 (Fla. 5th DCA 1981). Affirmed as modified.…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Flazell Troupe v. The Honorable Ellen Morphonios Rowe & the Honorable Paul Baker, 283 So. 2d 857 (Fla. 1973)
- State v. Williams, 397 So. 2d 663 (Fla. 1981)
- Elliot Katz v. State, 335 So. 2d 608 (Fla. 2d DCA 1976)
- Fuse v. State, 384 So. 2d 57 (Fla. 4th DCA 1980)
- Williams v. State, 353 So. 2d 588 (Fla. 3d DCA 1977)
- Ragland v. State, 358 So. 2d 100 (Fla. 3d DCA 1978)
- Williams v. State, 372 So. 2d 64 (Fla. 1979)
- Kellerman v. State, 353 So. 2d 901 (Fla. 3d DCA 1977)
- Hudson v. State, 366 So. 2d 824 (Fla. 3d DCA 1979)
- Kellerman v. State, 366 So. 2d 824 (Fla. 3d DCA 1979)