JAMES MAURICE JACKSON, JR., APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Jackson pleaded guilty to failure to appear and was sentenced to four years imprisonment based partly on testimony derived from an intercepted wire communication. The court reversed his sentence because the trial court failed to require disclosure of the wiretap authorization as mandated by Florida statute § 934.09(8) before admitting such testimony at sentencing.
A sentencing hearing is a 'proceeding' within the meaning of § 934.09(8), Fla. Stat., and therefore disclosure of the wiretap court order and application must be required before testimony derived from an intercepted wire communication can be admitted at sentencing.
[1] A sentencing hearing constitutes a "proceeding" within the meaning of statutes requiring disclosure of wiretap authorization orders and applications.
[2] Failure to disclose a wiretap authorization order and application, as required by statute, renders testimony derived from the intercepted communication inadmissible in a…
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“The legislative history of 18 U.S.C. § 2518(9) indicates that a 'proceeding' includes all adversary type hearings and would include 'a trial itself, a probation revocation proceeding, or a hearing on a motion for reduction of sentence.'”
Establishes that sentencing hearings fall within the definition of 'proceeding' requiring wiretap disclosure under both federal and Florida law
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Join FLexlaw to unlock all legal intelligenceJackson entered a guilty plea to failure to appear in violation of § 843.15, Fla. Stat. (1981). At the sentencing hearing, the trial court heard testi…
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THOMPSON, Judge.
Defendant entered a plea of guilty to failure to appear, contrary to § 843.15, Fla. Stat. (1981). During the sentencing hearing the trial court heard testimony which was obtained from an intercepted wire communication. Over defense counsel’s objection, the trial court refused to require disclosure under § 934.09(8), Fla.Stat. (1981) of the court order and accompanying application under which the interception was authorized or approved before allowing such testimony.
The trial court found that disclosure under § 934.09(8) was not required for the purposes of the sentencing hearing. At the close of the sentencing hearing, the trial court adjudicated defendant guilty of failure to appear and sentenced him to four years imprisonment.
Defendant contends that the trial court erred in hearing and considering the testimony which was derived from an intercepted wire communication without requiring disclosure pursuant to § 934.09(8).
We agree.
The issue to be resolved is whether a sentencing hearing is a “trial, hearing, or other proceeding” within the meaning of § 934.09(8), Fla.Stat.
Section 934.09(8) is for all intents and purposes identical to 18 U.S.C. § 2518(9) (1976), State v. Albano, 394 So. 2d 1026 (Fla. 2d DCA 1981).
Therefore, federal decisions interpreting the federal statute are instructive in determining the meaning of § 934.09(8). See generally, Hicks v. State, 359 So. 2d 475 (Fla. 1st DCA), cert. denied, 364 So. 2d 886 (Fla.1978). The legislative history of 18 U.S.C. § 2518(9) indicates that a “proceeding” includes all adversary type hearings and would include “a trial itself, a probation revocation proceeding, or a hearing on a motion for reduction of sentence.” S.Rep.No. 1097, 90th Cong., 2d Sess. (1968), reprinted in U.S.Code Cong. & Ad. News, 2112, 2194, 2195. It is therefore clear that a sentencing hearing is a “proceeding” within the federal counterpart to § 934.09(8). We see no reason why the same interpretation should not be given to § 934.09(8).
Accordingly, we hold that a sentencing hearing is a “proceeding” within the meaning of § 934.09(8), Fla.Stat. The trial' court erred in admitting testimony at the sentencing hearing which was derived from an intercepted wire communication, without requiring the disclosure provided for by § 934.09(8). Defendant’s sentence is therefore vacated and the cause is remanded for resentencing consistent with this opinion.
LARRY G. SMITH and JOANOS, JJ., concur.
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Citator
Cited By
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Velde v. Velde, 867 So. 2d 501 (Fla. 4th DCA 2004)….M.D.Fla. 1998)(“ ‘[T]he term ‘proceeding’ is used to refer to the steps within the ‘case’ and to any sub-action within the case that may raise a disputed or litigated matter.’ ’’)(quoting In re Wolverine, 930 F. 2d at 1141 n. 14); Jackson v. State, 416 So. 2d 853, 854 (Fla. 1st DCA 1982)(finding that the term “proceeding” under section 934.09(8) included all adversary type hearings, including sentencing); Cooper v. Carroll, 239 So. 2d 511, 512-13 (Fla. 3d DCA 1970)(finding that the filing of a notice of dism…
Authorities Cited
- State v. Albano, 394 So. 2d 1026 (Fla. 2d DCA 1981)
- City OF Miami v. Watkins, 359 So. 2d 475 (Fla. 3d DCA 1978)
- Weiner v. United States Fid. & Guar. Co., 359 So. 2d 475 (Fla. 3d DCA 1978)