CARLOS G. LLANOS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Carlos Llanos was convicted of two counts of aggravated battery and sentenced to five years (two in prison, three on probation). On appeal, the Florida Fifth District Court of Appeal reversed in part and remanded, finding that Llanos committed only one offense and should have been convicted of a single count, and that the search condition of his probation was unconstitutional.
The court held that: (1) the impeachment issue was not properly preserved for appellate review due to improper proffer; (2) Llanos committed only one offense and should have been convicted of only one count of aggravated battery, requiring vacation of the double judgments and sentences; and (3) the search condition of probation is invalid and must be deleted from any new sentence.
[1] A prior inconsistent statement is not preserved for appellate review if it was not properly proffered, even if otherwise admissible.
[2] A defendant may not be convicted and sentenced for multiple offenses when the facts establish only a single offense.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“we agree that Llanos committed only one offense and he should have been convicted of only one charge. The jury found him guilty of two counts of aggravated battery — sections 784.045(l)(a) and (b). The court should have adjudicated and sentenced Llanos for only one count.”
Establishes that convicting and sentencing on both subsections constitutes improper double conviction for a single offense
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Join FLexlaw to unlock all legal intelligenceLlanos was convicted by jury of two counts of aggravated battery under sections 784.045(1)(a) and (b). He was sentenced to five years total—two years …
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PER CURIAM.
Llanos was convicted by a jury of two counts of aggravated battery and was sentenced to five years — two to be served in prison and three on probation. He argues that the trial court erred in limiting his attempt to impeach a state’s witness with a prior inconsistent statement, in imposing a sentence of two concurrent terms for one offense, and in imposing as a condition of probation that the appellant consent to search by any law enforcement officer at any time.
With regard to Llanos’ first issue, even if the prior statement was otherwise properly admissible, it was not properly proffered and, therefore, it has not been preserved for appellate review.1 Ritter’s Hotel v. Sidebothom, 142 Fla. 171, 194 So. 322 (1940); Atlantic Coast Line R.R. Co. v. Shouse, 83 Fla. 156, 91 So. 90 (1922); Atlantic Distributors, Inc. v. Alson Mfg. Co., 141 So. 2d 305 (Fla. 3d DCA 1962); 3 Fla.Jur.2d Appellate Review § 93 (1978).
As for Llanos’ second issue, we agree that Llanos committed only one offense and he should have been convicted of only one charge. The jury found him guilty of two counts of aggravated battery — sections 784.045(l)(a) and (b). The court should have adjudicated and sentenced Llanos for only one count. Cf. Thomas v. State, 380 So. 2d 1299 (Fla. 4th DCA), pet. for review denied, 389 So. 2d 1116 (Fla.1980); Phillips v. State, 289 So. 2d 769 (Fla. 2d DCA 1974).
Turning to Llanos’ third issue, our Florida Supreme Court has established that a condition of probation that requires a probationer to submit to a search at any time by any law enforcement officer or to any physical and chemical examinations at the request of a law enforcement officer is an invalid condition. Grubbs v. State, 373 So. 2d 905 (Fla.1979); Jones v. State, 384 So. 2d 956 (Fla. 5th DCA 1980), pet. for review denied, 392 So. 2d 1375 (Fla.1980); Smith v. State, 383 So. 2d 991 (Fla. 5th DCA 1980); Wood v. State, 378 So. 2d 110 (Fla. 5th DCA 1980).
The trial court is directed to vacate the double judgments and sentences of aggravated battery and enter one judgment and one sentence for that crime. The trial court is further directed to delete from the new sentence any condition of probation in conflict with Grubbs.
REVERSED in part and REMANDED with directions.
COBB and COWART, JJ., concur. SHARP, J., dissents with opinion.
. The dissent herein by Judge Sharp indicates that the state and defense counsel had agreed upon “the substance of the impeaching statement” and, therefore, proffer was unnecessary. In the instant case, however, it is crucial to admissibility of the proposed impeachment to know whether the purported directive by Re-mano to the witness (Linda) to leave the bar came before or after Romano had been overtly threatened in the bar by the defendant’s companion. Unless it was prior to the threat, then the proposed impeachment was immaterial, as the trial court ruled. We cannot know this without the proffer, which was not precluded by the trial court. Nor was this point agreed to between the state and defense counsel.
SHARP, Judge,
dissenting.
I dissent in this case and would reverse and remand it for a new trial because I think a sufficient proffer of the impeaching statement was made and it was material.
Defense counsel sought to impeach a state witness by proof of a prior inconsistent statement. The statement was on a tape he was prepared to play in court.1 The court ruled the tape should be played. A side bar conference was then held and the State Attorney said:
Your honor, I believe the point Mr. Carpenter [the public defender] seeks to impeach this witness by is whether or not she said or indicated at a prior time that Mr. Romano told her to leave the area when he saw his friends coming at him, in light of the current testimony that he did not tell her to leave. Is that correct?
Defense counsel responded that was the substance of the statement. The state attorney then objected to its admission because it did not impeach the witness on a “material” part of her testimony. The trial court denied its admission on that ground.
The purpose of requiring a proffer is two-fold. The substance of the statement should be presented to the trial judge so that he can properly rule on its admissibility, and the substance of the statement should be in the record so the appellate court can effectively review the trial court’s ruling. Phillips v. State, 351 So. 2d 738 (Fla. 3d DCA 1977), cert. denied, 361 So. 2d 834 (Fla.1978); Piccirrillo v. State, 329 So. 2d 46 (Fla. 1st DCA 1976). Here the attorneys together agreed what the substance of the impeaching statement was, the purpose of its being offered was clear, and the trial judge was sufficiently apprised of its content so that he was able to rule on the merits of its admissibility.
Because I believe the correctness of the trial judge’s ruling was presented for our review, I would hold that its ruling exclud ing the impeachment was harmful error because the statement directly contradicted the witness’ testimony on the key question of which party (the defendant or Romano) was the aggressor in the barroom fight.2
I concur otherwise with the balance of the majority opinion.
. Apparently because of budget problems it was the local practice for the public defender not to have depositions transcribed, and the courts allowed the playing of tapes in such criminal trials.
. Coco v. State, 62 So. 2d 892 (Fla. 1953); Coxwell v. State, 361 So. 2d 148 (Fla. 1978); Johnson v. State, 178 So. 2d 724 (Fla. 2d DCA 1965); Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969).
Cases With Similar Vibessemantic neighbors from the corpus
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Baker v. State, 425 So. 2d 36 (Fla. 5th DCA 1982)…iolative of a statutory offense, can be complex and at one instant of time can stack kaleidoscopically; they are not divisioned neatly into units, pigeonholed horizontally in rows as to time and vertically into tiers as to place. . Llanos v. State, 401 So. 2d 848 (Fla. 5th DCA 1981). . See, e.g., Bass v. State, 380 So. 2d 1181 (Fla. 5th DCA 1980). . See, e.g., Drakes v. State, 400 So. 2d 487 (Fla. 5th DCA 1981) (theft of multiple items during one burglary held to be one theft); Castleberry v. State, 402 So…
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Short v. State, 423 So. 2d 562 (Fla. 2d DCA 1982)…y, one under section 784.045(l)(a) and the other under section 784.045(l)(b), Florida Statutes (1979), the appellant only committed one battery, and accordingly, the court should have adjudicated and sentenced him on only one count. Llanos v. State, 401 So. 2d 848 (Fla. 5th DCA 1981). Since the trial court in pronouncing sentence did not announce which count he was sentencing the defendant under, we remand to the trial court with directions to set aside the adjudication and sentence on one of the counts of a…
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Garfield James Woodson v. State, 483 So. 2d 858 (Fla. 5th DCA 1986)…tent of the witness’ testimony was going to be concerning the officer’s reputation, we do not think this error was preserved on appeal. Whitted v. State, 362 So. 2d 668 (Fla.1978); Ketrow v. State, 414 So. 2d 298 (Fla. 2d DCA 1982); Llanos v. State, 401 So. 2d 848 (Fla. 5th DCA 1981). Section 90.104 of the Evidence Code provides: (1) A court may predicate error, set aside or reverse a judgment, or grant a new trial on the basis of admitted or excluded evidence when a substantial right of the party is adverse…
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 (15 total)
- Harrington v. California, 395 U.S. 250 (U.S. 1969)
- Grubbs v. State, 373 So. 2d 905 (Fla. 1979)
- Coco v. State, 62 So. 2d 892 (Fla. 1953)
- Atl. Coast Line R.R. Co. v. Shouse, 83 Fla. 156 (Fla. 1922)
- Coxwell v. State, 361 So. 2d 148 (Fla. 1978)
- Ritter's Hotel, Inc. v. Sidebothom, 142 Fla. 171 (Fla. 1940)
- Johnson v. State, 178 So. 2d 724 (Fla. 2d DCA 1965)
- Jones v. State, 384 So. 2d 956 (Fla. 5th DCA 1980)
- Phillips v. State, 289 So. 2d 769 (Fla. 2d DCA 1974)
- Piccirrillo v. State, 329 So. 2d 46 (Fla. 1st DCA 1976)