JUAN PEREZ, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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A defendant's perceived untruthfulness during trial is not a valid reason for departing from the sentencing guidelines.
The defendant was convicted of battery of a law enforcement officer, resisting an officer without violence, and simple battery. The trial court depart…
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SHIVERS, Judge.
This is an appeal from a conviction and sentence for battery of a law enforcement officer, resisting an officer without violence, and simple battery. Appellant/defendant argues on appeal that the trial court erred in departing from the sentencing guidelines, based on the sole reason that the court believed defendant to have perjured himself while testifying at trial.
We agree. The courts of this state have consistently held that a defendant’s apparent untruthfulness at trial is not a valid reason for departing from the sentencing guidelines. Beauvais v. State, 475 So. 2d 1342 (Fla. 3d DCA 1985); Sloan v. State, 472 So. 2d 488 (Fla. 2d DCA 1985); Hunt v. State, 468 So. 2d 1100 (Fla. 1st DCA 1985); Trainor v. State, 468 So. 2d 484 (Fla. 2d DCA 1985); Bowdoin v. State, 464 So. 2d 596 (Fla. 4th DCA 1985). Defendant’s failure to contemporaneously object to the trial court’s stated reason for departure does not vitiate his right to appeal the issue to this court. Mitchell v. State, 458 So. 2d 10 (Fla. 1st DCA 1984); McGouirk v. State, 470 So. 2d 31 (Fla. 1st DCA 1985).
Accordingly, the sentence imposed by the trial court is vacated and the matter is remanded for entry of a sentence within the range recommended by the sentencing guidelines. On remand, the court is also instructed to correct the written judgment to conform with the court’s oral pronouncement of judgment. Bivens v. State, 454 So. 2d 723 (Fla. 1st DCA 1984).
JOANOS and NIMMONS, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
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Avery Corbitt v. State, 220 So. 3d 446 (Fla. 5th DCA 2016)…rst District Court explained: We do not believe that- the validity of reason #4 is governed by the cases which have disapproved the trial court’s reliance upon the defendant’s apparent untruthfulness at trial or lack of remorse. See Perez v. State, 485 So. 2d 24 (Fla. 1st DCA 1986); Hubler v. State, 458 So. 2d 350 (Fla. 1st DCA 1984); Guerrero v. State, 484 So. 2d 59 (Fla. 2nd DCA 1986); and Pursell v. State, 483 So. 2d 94 (Fla. 2nd DCA 1986). In Hubler, the defendant pled not guilty, went to trial, and pr…
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Everage v. State, 504 So. 2d 1255 (Fla. 1st DCA 1986)…imony under oath. Since the advent of sentencing guidelines, the appellate courts of this state have, on a number of occasions, disapproved guidelines departure where the basis is the defendant’s apparent untruthfulness during trial. Perez v. State, 485 So. 2d 24 (Fla. 1st DCA 1986); Beauvais v. State, 475 So. 2d 1342 (Fla. 3d DCA 1985); Gallo v. State, 483 So. 2d 876 (Fla. 2nd DCA 1986); Guerrero v. State, 484 So. 2d 59 (Fla. 2nd DCA 1986); and Pursell v. State, 483 So. 2d 94 (Fla. 2nd DCA 1986). The trial…
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Peake v. State, 490 So. 2d 1325 (Fla. 1st DCA 1986)…njury suffered by the victim. We do not believe that the validity of reason # 4 is governed by the cases which have disapproved the trial court’s reliance upon the defendant’s apparent untruthfulness at trial or lack of remorse. See Perez v. State, 485 So. 2d 24 (Fla. 1st DCA 1986); Hubler v. State, 458 So. 2d 350 (Fla. 1st DCA 1984); Guerrero v. State, 484 So. 2d [*1326] 59 (Fla. 2nd DCA 1986); and Pursell v. State, 483 So. 2d 94 (Fla. 2nd DCA 1986). In Hubler, the defendant pled not guilty, went to trial…
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
- Mitchell v. State, 458 So. 2d 10 (Fla. 1st DCA 1984)
- Hunt v. State, 468 So. 2d 1100 (Fla. 1st DCA 1985)
- Bowdoin v. State, 464 So. 2d 596 (Fla. 4th DCA 1985)
- Sloan v. State, 472 So. 2d 488 (Fla. 2d DCA 1985)
- Trainor v. State, 468 So. 2d 484 (Fla. 2d DCA 1985)
- Juvenal Pina v. Pina, 475 So. 2d 1342 (Fla. 3d DCA 1985)
- McGOUIRK v. State, 470 So. 2d 31 (Fla. 1st DCA 1985)
- Lucynthia Bivins v. State, 454 So. 2d 723 (Fla. 1st DCA 1984)