DANIEL VIERA, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Daniel Viera appealed his convictions for armed robbery, attempted first-degree murder, and displaying a firearm during a felony, raising four trial errors and challenging his sentences. The court affirmed the convictions but reversed and remanded the sentences due to insufficient reasoning for departure from sentencing guidelines.
The court rejected all four trial error contentions as presenting no reversible error given the overwhelming proof of guilt. However, the court found that the trial court's reasons for departing from sentencing guidelines were too cursory and remanded for more detailed sentencing findings.
[1] A trial court may allow the state to reopen its case and recall a witness, even a co-defendant, in the absence of reversible error.
[2] A motion to suppress show-up identification testimony may be denied when there is no reversible error.
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Join FLexlaw to unlock all legal intelligence“Extended discussion of these points is unnecessary as none present any error, much less reversible error, given the overwhelming proof of guilt in this case.”
Establishes the court's rationale for rejecting trial error contentions based on overwhelming evidence standard
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Join FLexlaw to unlock all legal intelligenceViera was convicted by jury verdict of armed robbery, attempted first-degree murder, and displaying a firearm during the commission of a felony. He ch…
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PER CURIAM.
This is an appeal from criminal convictions and sentences for armed robbery, attempted first-degree murder, and displaying a firearm during the commission of a felony entered on an adverse jury verdict. The defendant Daniel Viera raises four points on appeal attacking the judgments of conviction herein. He contends that the trial court erred in (1) allowing the state to reopen its case and recall a co-defendant as a witness; (2) denying his motion to suppress show-up identification testimony; (3) denying his motion for mistrial based on the prosecutor’s final argument; and (4) admitting a certain photograph in evidence. Extended discussion of these points is unnecessary as none present any error, much less reversible error, given the overwhelming proof of guilt in this case. We, accordingly, reject each of the points as presenting no reversible error. See Blanco v. State, 452 So. 2d 520, 524 (Fla.1984), cert. denied, — U.S. -, 105 S.Ct. 940, 83 L.Ed.2d 953 (1985); Booker v. State, 397 So. 2d 910, 914 (Fla.), cert. denied, 454 U.S. 957, 102 S.Ct. 493, 70 L.Ed.2d 261 (1981); Courtney v. State, 358 So. 2d 1107, 1109 (Fla. 3d DCA), cert. denied, 365 So. 2d 710 (Fla.1978); Bretti v. State, 192 So. 2d 6, 7 (Fla.3d DCA 1966), cert. denied, 201 So. 2d 459 (Fla.1967), cert. denied, 390 U.S. 944, 88 S.Ct. 1023, 19 L.Ed.2d 1132 (1968); Kimmons v. State, 178 So. 2d 608, 615 (Fla. 1st DCA 1965), cert. discharged, 190 So. 2d 308 (Fla.1966), cert. denied, 387 U.S. 934, 87 S.Ct. 2057, 18 L.Ed.2d 996 (1967); see generally Lee v. State, 456 So. 2d 1211 (Fla.3d DCA 1984).
The defendant Viera also attacks the sentences imposed on various grounds. We find no merit in any of these grounds, save one. We believe that the reasons given by the trial court for departing from the sentencing guidelines’ recommended sentence are too cursory for us to determine whether these were valid reasons for the said departure in this case. We, accordingly, reverse the sentences under review and remand the cause to the trial court with directions to enter a more detailed order setting out the reasons for departing from the sentencing guidelines. Mortimer v. State, 490 So. 2d 93 (Fla.3d DCA 1986).
The final judgments under review are affirmed; the sentences under review are reversed and the cause is remanded to the trial court with directions to resentence the defendant, as before, and enter a written order setting out its reasons for so departing from the sentencing guidelines. The defendant Viera need not be present at the resentencing.
Affirmed in part; reversed in part and remanded.
HUBBART and JORGENSON, JJ., concur.
SCHWARTZ, Chief Judge
(dissenting in part).
I disagree with the majority that the reasons assigned for deviation are so skimpy or otherwise defective in form that they cannot now be meaningfully reviewed. I am convinced, however, that they are insufficient on their merits to support a departure from the guidelines. See State v. Mischler, 488 So. 2d 523 (Fla. 1986); State v. Cote, 487 So. 2d 1039 (Fla.1986). I would therefore reverse the sentence outright with directions to impose a new one within the guidelines.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Viera v. State, 532 So. 2d 743 (Fla. 3d DCA 1988)…quent to his deportation for prior crimes, and Viera’s recent release from prison after serving time for commission of a violent crime. This court affirmed Viera’s convictions but reversed his sentence and remanded for resentencing. Viera v. State, 490 So. 2d 1332 (Fla.3d DCA 1986). Finding the notations on the scoresheet too cursory for adequate review, this court directed the trial court “to enter a more detailed order setting out the reasons for departing from the sentencing guidelines.” Id. On remand, the…
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State v. Williams, 515 So. 2d 1051 (Fla. 3d DCA 1987)…revail in a jury trial. It further appears to the Court that the Defendant was acting under the influence and control of the Co-Defendant. The reasons given by the trial court are not clear and convincing grounds for departure. See Viera v. State, 490 So. 2d 1332 (Fla. 3d DCA 1986) (reasons are too cursory to support departure); State v. Wright, 473 So. 2d 268 (Fla. 1st DCA 1985), review denied, 484 So. 2d 10 (Fla.1986). Cf Hankey v. State, 485 So. 2d 827, 828 (Fla. 1986) (“Economic hardship on the victim ca…
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Ferguson v. State, 537 So. 2d 144 (Fla. 3d DCA 1989)…ns—valid or [*145] invalid—for departing from the sentencing guidelines.1 A reversal and remand is, accordingly, in order to permit the trial court to enter a more detailed order justifying the sentencing guidelines departure herein. Viera v. State, 490 So. 2d 1332 (Fla. 3d DCA 1986). The sentence under review is reversed, and the cause is remanded to the trial court with directions (1) to enter a more detailed order setting out the reasons for departing from the sentencing guidelines, or (2) to impose a sent…
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 (17 total)
- State v. Mischler, 488 So. 2d 523 (Fla. 1986)
- Blanco v. State, 452 So. 2d 520 (Fla. 1984)
- Booker v. State, 397 So. 2d 910 (Fla. 1981)
- State v. Cote, 487 So. 2d 1039 (Fla. 1986)
- Booker v. Florida, 454 U.S. 957 (U.S. 1981)
- O'Reilly v. Bd. of Med. Exam'rs of the State of Cal., 390 U.S. 944 (U.S. 1968)
- Armel v. United States, 390 U.S. 944 (U.S. 1968)
- Bretti v. State, 192 So. 2d 6 (Fla. 3d DCA 1966)
- State v. Mortimer, 490 So. 2d 93 (Fla. 3d DCA 1986)
- Kimmons v. State, 178 So. 2d 608 (Fla. 1st DCA 1965)