THOMAS OVERTON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Thomas Overton appeals his armed robbery conviction and 99-year sentence, challenging the exclusion of his exculpatory statements made upon arrest and the trial court's retention of jurisdiction over one-third of his sentence for parole review purposes. The appellate court affirmed the conviction and sentence.
The trial court properly excluded Overton's statements as self-serving hearsay lacking trustworthiness despite their timing, and the retention of jurisdiction over one-third of the sentence for parole review was properly justified under applicable statute.
[1] A statement made immediately upon apprehension, even if part of the res gestae, may be excluded as hearsay if it is self-serving and lacks trustworthiness.
[2] A trial court's justification for retaining jurisdiction over a sentence for parole review purposes is sufficient if the record contains adequate reasons and the court en…
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Join FLexlaw to unlock all legal intelligence“Although the statement was made at the time of Overton's apprehension and may be considered as part of the res gestae, if it is so self-serving and made under circumstances that indicate its lack of trustworthiness, then it should be excluded.”
Establishes that even statements qualifying as res gestae or excited utterance may be excluded if self-serving and untrustworthy
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Join FLexlaw to unlock all legal intelligenceOverton was convicted of armed robbery by jury and sentenced to 99 years in prison, with the trial judge retaining jurisdiction over one-third of the …
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WIGGINTON, Judge.
Appellant seeks review of his conviction of armed robbery, after trial by jury, entry of final judgment and sentence to ninety-nine years in prison. The trial judge reserved jurisdiction over one-third of the sentence for parole review purposes. We affirm.
Overton complains that it was error to disallow testimony concerning his exculpatory statements made immediately upon apprehension as those statements fall within the res gestae exception to the hearsay rule and therefore are admissible, citing Section 90.803(2) relating to “excited utterance.” During the trial, defense counsel attempted to elicit from a deputy sheriff witness the statement appellant made to him at the scene of the arrest. The deputy’s proffered testimony was to the effect that Overton told him he had “the wrong guy” and that the police were letting the “right guy” get away. Appellant’s professed purpose of offering the statement was to show his state of mind at the time of apprehension and to show that he did not have time to fabricate his version of the events. The trial court was correct in sustaining the state’s objection on the ground that the statement was “self-serving.” Although the statement was made at the time of Overton’s apprehension and may be considered as part of the res gestae, if it is so self-serving and made under circumstances that indicate its lack of trustworthiness, then it should be excluded. See Section 90.803(1), Florida Statutes (1981).
Appellant’s contention that the trial court failed to state with individual particularity the justification for retaining jurisdiction over the sentence for purposes of parole review is without merit. The record reveals sufficient justification for retaining jurisdiction and the court’s observations and enumeration of offenses accord with Section 947.16(3), Florida Statutes (1981).
The imposition of a ninety-nine year sentence and retention of jurisdiction for one-third of the sentence does not compel a mandatory minimum sentence of thirty-three and one-third years but permits the trial judge to control parole review during that maximum period of time. See Harmon v. State, 416 So. 2d 835 (Fla. 1st DCA 1982).
AFFIRMED.
SHIVERS and BOOTH, JJ., concur.
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Hampton v. State, 764 So. 2d 829 (Fla. 1st DCA 2000)…ecific supporting facts, indicating that “the defendant’s record” supports an enhanced sentence, is not sufficient. See, e.g., Berry v. State, 484 So. 2d 86 (Fla. 2d DCA 1986); Scott v. State, 446 So. 2d 261 (Fla. 2d DCA 1984). Cf. Overton v. State, 429 So. 2d 722 (Fla. 1st DCA 1988) (trial court adequately justified retention of jurisdiction by including specific observations and enumerating defendant’s offenses). Because the challenged findings are no more specific than the findings that we deemed inadequat…
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Alexander v. State, 627 So. 2d 35 (Fla. 1st DCA 1993)…ements were not spontaneous, but were made in response to Sims’ question, and that they indicated Alexander’s state of mind after the shooting, which was not at issue). As for section 90.803(2) (excited utterances), I note that in Overton v. State, 429 So. 2d 722 (Fla. 1st DCA), rev. denied, 440 So. 2d 352 (Fla.1983), in which the defendant had sought admission of his exculpatory statements made immediately upon apprehension as “excited utterances,” we held that the trial judge was correct in sustaining the…1 / 2
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Hayes v. State, 452 So. 2d 656 (Fla. 2d DCA 1984)…fect the punishment or sentence imposed on a defendant within the meaning of the foregoing constitutional provision but has an effect which “permits the trial judge to control parole review” during the term of the sentence imposed. Overton v. State, 429 So. 2d 722, 723 (Fla. 1st DCA 1983). OTT, A.C.J., and SCHOONOVER and LEHAN, JJ., concur.…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Harmon v. State, 416 So. 2d 835 (Fla. 1st DCA 1982)