KURTIS SMITH, ETC., APPELLANT,
v.
STATE OF FLORIDA, APPELLEE

Fla. 5th DCA | 1984-12-20
No. 84-138
DAUKSCH and ORFINGER, JJ., concur.
461 So. 2d 995 Florida District Court of Appeal, Fifth District (1984) Negative Treatment
Cited by 15 cases

AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.

Synopsis

Kurtis Smith appealed his enhanced sentence imposed under Florida's habitual offender act after pleading nolo contendere to grand theft and aggravated assault. The court affirmed the sentence, holding that while defendants may challenge hearsay in pre-sentence investigation reports, they must make specific objections to particular information rather than general objections to the report itself.


Holding

The court affirmed the enhanced sentence, holding that while defendants have the right to challenge hearsay in PSI reports used in habitual offender proceedings, they must make specific objections identifying the particular information disputed. A general objection to the PSI claiming hearsay and rap-sheet unreliability is insufficient to trigger the state's obligation to produce corroborating evidence.


Headnotes

[1] Sentencing guidelines do not repeal the habitual offender act by implication.

[2] A sentencing judge may depart from the guidelines based on a defendant's prior criminal record, even if that record is considered in determining the recommended sentence.

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Key Quotes

“while there is no constitutional prohibition against the use of a PSI report in habitual offender proceedings, where the defendant disputes the truth of hearsay statements in such a report, the state must produce corroborating evidence to support such statements”

Establishes the rule that PSI hearsay requires corroboration if disputed, but only when specific information is challenged

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Facts & Procedural History

Smith entered nolo contendere pleas to grand theft and aggravated assault. The state sought an enhanced penalty under the habitual offender act based …

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Opinion of the Court
FRANK D. UPCHURCH, Jr., Judge.

FRANK D. UPCHURCH, Jr., Judge.

Appellant Kurtis Smith appeals his sentence after entering nolo contendere pleas to grand theft and aggravated assault. During discovery, the state had filed notice that it intended to seek an enhanced penalty under the habitual offender act, section 775.084, Florida Statutes. Smith elected to be sentenced under the sentencing guidelines. A scoresheet showed a recommended sentence of twelve to thirty months incarceration.

Over objection, the state introduced a pre-sentence investigation report which revealed that Smith had a lengthy prior adult criminal record relating back to 1969. At the hearing, the state presented the probation-parole investigator who prepared the PSI. On cross-examination, he testified that in compiling the PSI, he used information from an FBI rapsheet, FDLE rapsheet and Orange County Sheriff’s Office rap-sheet. Smith acknowledged a conviction for burglary of a conveyance on August 31, 1977, but objected to use of the PSI, arguing that a rapsheet was not sufficient evidence of prior convictions and constituted hearsay.

The trial court found that based on the 1977 burglary conviction and sentence, Smith was an habitual offender. Finding that an extended sentence was necessary for the protection of the public because of Smith’s extensive criminal record, the court sentenced him to consecutive sentences of seven and one-half years on each charge. The written reason for departure was stated as follows:

Court found defendant to be an habitual offender and imposed extended terms of imprisonment pursuant to F.S. 775.084(4) which the Court finds to be a clear and convincing reason for departure.

Smith first argues that the habitual offender act has been repealed by implication by the sentencing guidelines which provide for consideration and scoring of prior o£ fenses.

This court has held that a sentencing judge may depart from the guidelines based on the defendant’s prior criminal record, even though such record is taken into account in determining the recommended sentence. Hendrix v. State, 455 So. 2d 449 (Fla. 5th DCA 1984). It follows that the habitual offender act may continue to exist with the guidelines and may constitute a clear and convincing reason to deviate from the recommended sentence, Florida Rule of Criminal Procedure 3.701(d)(ll), where its provisions are satisfied. Accord Brady v. State, 457 So. 2d 544 (Fla. 2d DCA 1984).

In order to impose an enhanced sentence under the habitual offender act, the court must find: (1) that the present offense was committed within five years of the date of a prior felony conviction or within five years of the defendant’s release from a prison sentence for a felony, (2) that the defendant was not pardoned for the crime nor was his conviction set aside, and (3)that the enhanced sentence is necessary for the protection of the public.

Smith stipulated that he had been sentenced to four years imprisonment in 1977 for burglary. Certified copies of two certificates of mandatory conditional release were introduced showing that Smith had been released from the Department of Corrections on parole first on March 16, 1979, which was revoked, and again on May 1, 1981. A photograph and fingerprints of Smith, taken by the Department of Corrections, were included with the certificates. The trial judge in this case stated that the photograph was that of Smith. Since both dates of release fall within the five-year period (the present offense was committed on September 18, 1982) and it was uncontested that Smith was not pardoned nor was his 1977 conviction set aside, the first two conditions above were met by competent, substantial evidence.

The real issue is whether the court im-permissibly relied on uncorroborated hearsay in finding that the enhanced sentence was necessary for the protection of the public. Smith argues that the court did, because it based such finding on the PSI which revealed Smith’s extensive prior criminal record, but derived from rapsheets of which the compiling officer had no first hand knowledge.

In Eutsey v. State, 383 So. 2d 219 (Fla.1980), the supreme court ruled that while there is no constitutional prohibition against the use of a PSI report in habitual offender proceedings, where the defendant disputes the truth of hearsay statements in such a report, the state must produce corroborating evidence to support such statements in order for them to be relied upon in making the required statutory findings. See also McElveen v. State, 440 So. 2d 636 (Fla. 1st DCA 1983) and Adams v. State, 376 So. 2d 47 (Fla. 1st DCA 1979), which hold that reliance on uncorroborated hearsay in a PSI report to support a finding that an enhanced sentence was necessary for protection of the public violates due process. However, the defendant must object to particular information in the PSI in order to trigger the state’s obligation to come forward with corroborating evidence and cannot merely make a general objection to the use of the PSI. See Eutsey, 383 So. 2d at 226.

The objection which the defense made to the PSI follows:

MR. LORINCZ: One, it would be hearsay; two, I notice there is alleged criminal history, many of the entries not having dispositions. As far as I know, there are only one or two or three of those entries wherein there is evidence that the offenses.belonged to this defendant.

It just appears to me under the circumstances in this case that all of this is not proper to be admitted in this proceeding. We would say with regard to each and every offense which the State would attempt to use for purposes of enhancement, they are going to establish by credible proper evidence that the particular offense attributed to my client is, in fact, properly attributable to him. And my position is that an FBI rap sheet or a rap sheet of any sort is insufficient for that purpose; the accuracy and the duplication and the errors with regard to a rap sheet, it’s well known to one and all. On that basis, I do not believe that that sort of criminal history is appropriate to be entered into evidence in a case of this type and a proceeding of this type.

We do not think this objection was sufficient. It is not enough to say that the report contains hearsay. The defendant must dispute the truth of the material in the PSI. In other words, the defendant must identify the portions of the PSI he challenges. Only then does the state have the obligation to present proof to overcome the hearsay included in the report. This is consistent with Eutsey, wherein the court stated:

It follows that the sentencing court must devise orderly procedures for identifying hearsay in the presentence report which is disputed by the defendant, which the court intends to consider in its potential 776.084 findings, and which the court finds, is subject to witness confrontation and cross-examination rights_ (emphasis added).

383 So. 2d at 225.

AFFIRMED.

DAUKSCH and ORFINGER, JJ., concur.


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Citator

Cited By (15 total)

  • Brooks v. State, 478 So. 2d 1052 (Fla. 1985)
    …EHRLICH, Justice. We have for consideration the following questions certified to us in Brooks v. State, 461 So. 2d 995 (Fla. 1st DCA 1984), as being of great public importance: 1. When a person is sentenced as a youthful offender pursuant to chapter 958.05(2), Florida Statutes (1979), does the circuit court have jurisdiction to revoke the community control status o…
  • State v. Watts, 558 So. 2d 994 (Fla. 1990)
    …t decisions questioned whether a circuit court could resentence a youthful offender as an adult upon revocation of youthful offender status and revocation of community control. See Clem v. State, 462 So. 2d 1134 (Fla. 4th DCA 1984); Brooks v. State, 461 So. 2d 995 (Fla. 1st DCA 1984), approved, 478 So. 2d 1052 (Fla.1985). We agree with Watson, in which the court said: [T]he only logical conclusion is that the legislature intended to change the case law interpretation of § 958.14, or in any event to change th…
  • Watson v. State, 528 So. 2d 101 (Fla. 1st DCA 1988)
    …ad the option of continuing the youthful offender status of the defendant or resen-tencing the defendant as an adult. See, e.g., Crosby v. State, 487 So. 2d 416 (Fla. 2d DCA 1986); Clem v. State, 462 So. 2d 1134 (Fla. 4th DCA 1984); Brooks v. State, 461 So. 2d 995 (Fla. 1st DCA 1984) (Brooks I). In Brooks I and Clem the courts certified to the supreme court the question whether the circuit court could, under the law existing prior to the 1985 amendment, resen-tence a youthful offender as an adult upon the rev…

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