JORGE SUEIRO, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Jorge Sueiro appealed his conviction for burglary of a dwelling and petit theft, challenging both the judgment and his seven-year sentence. The Florida appellate court affirmed the conviction but vacated the sentence, finding the trial court improperly applied sentencing guidelines that were not yet in effect when the offense was committed.
The conviction was affirmed because any error regarding the fingerprint question was harmless in light of overwhelming evidence against the appellant, and the defendant opened the door to such questioning by raising the fingerprint issue through defense counsel. The sentence was vacated and remanded because the trial court improperly applied sentencing guidelines that did not become effective until July 1, 1984, five months after the February 14, 1984 offense.
[1] A defendant may not complain on appeal of an error that was first brought to light at trial by their own counsel.
[2] Any error in admitting evidence is rendered harmless when there is overwhelming evidence of guilt against the defendant.
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Join FLexlaw to unlock all legal intelligence“The matter having been first brought out at trial by his counsel, appellant may not complain on appeal of any error in this regard.”
Establishes the principle that a party who opens the door to evidence cannot complain about its use on appeal
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Join FLexlaw to unlock all legal intelligenceSueiro was convicted by jury of burglary of a dwelling and petit theft. The offense was committed on February 14, 1984. The trial court imposed a seve…
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HENDRY, Judge.
Appellant seeks review of a judgment of conviction and sentence entered pursuant to a jury verdict finding him guilty of burglary of a dwelling and petit theft. It is appellant’s contention that the judgment and the seven year sentence that the court entered were improper and should be reversed.
As to the judgment of conviction, it is argued that the trial court erred in overruling appellant’s objection to a question concerning the failure to find his fingerprints in the house that he was charged with burglarizing, because such question was based on facts not in evidence. We have carefully considered appellant’s contention on this point, in the light of the record, briefs and argument of counsel, and have concluded that reversible error has not been shown. The trial transcript reflects that defense counsel had established, prior to the cross-examination question now at issue, the negative inference that there was no adverse fingerprint evidence. The matter having been first brought out at trial by his counsel, appellant may not complain on appeal of any error in this regard. White v. State, 348 So. 2d 1170 (Fla. 3d DCA 1977); see also Pope v. State, 441 So. 2d 1073, 1076 (Fla.1983). Furthermore, any error was harmless in view of the overwhelming evidence against the appellant. See State v. Murray, 443 So. 2d 955 (Fla.1984).
Appellant’s other point concerns the sentence of seven years which the court imposed. It is contended that the trial judge erred in basing the sentence on guidelines which were not legally in effect at the time the offense was committed on February 14, 1984. We agree. It is conceded that the guidelines used by the court were not in effect at the time the offense was committed and did not become law until July 1, 1984, almost five months thereafter. Chapter 84-328, Laws of Florida. We therefore find error in the sentencing and vacate the sentence and remand the cause for the purpose of resentencing appellant under the proper guidelines. Miller v. State, 468 So. 2d 1018 (Fla. 4th DCA 1985). Appellant need not be present for the imposition of the corrected sentence.
The judgment of conviction is accordingly affirmed, the sentence is vacated and the cause remanded for resentencing.
Affirmed in part; reversed in part, and remanded.
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Clinksdale v. State, 562 So. 2d 449 (Fla. 3d DCA 1990)…PER CURIAM. Affirmed. Ree v. State, 14 F.L.W. 565 (Fla. Nov. 16, 1989); Sueiro v. State, 471 So. 2d 1317 (Fla. 3d DCA 1985), quashed in part, 487 So. 2d 1071 (Fla.1986).…
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State v. Sueiro, 487 So. 2d 1071 (Fla. 1986)…PER CURIAM. We review Sueiro v. State, 471 So. 2d 1317 (Fla.3d DCA 1985), because of direct and express conflict with State v. Jackson, 478 So. 2d 1054 (Fla.1985). We have jurisdiction, article V, section 3(b)(3), Florida Constitution. The district court below held, inter alia, that sentencing guideli…
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State v. Sueiro, 515 So. 2d 210 (Fla. 1987)…and remanded the case for further consideration in light of Miller v. Florida, — U.S.-, 107 S.Ct. 2446, 96 L.Ed.2d 351 (1987). Previously, on the authority of State v. Jackson, 478 So. 2d 1054 (Fla.1985), we quashed that portion of Sueiro v. State, 471 So. 2d 1317 (Fla.3d DCA 1985), holding that sentencing guidelines in effect at the time of sentencing could not be used. We have since receded from Jackson to the extent that it conflicts with Miller. Wilkerson v. State, 513 So. 2d 664 (Fla.1987). We now reinst…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. Murray, 443 So. 2d 955 (Fla. 1984)
- Pope v. State, 441 So. 2d 1073 (Fla. 1983)
- Miller v. State, 468 So. 2d 1018 (Fla. 4th DCA 1985)
- White v. State, 348 So. 2d 1170 (Fla. 3d DCA 1977)