JERRY LEE SLOAN, PETITIONER,
v.
STATE OF FLORIDA, RESPONDENT
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The Florida Supreme Court reviewed a burglary and grand theft conviction, affirming the trial court's allowance of prior inconsistent testimony on direct examination and reversing the sentencing departure that relied on both valid and invalid reasons.
The court held that prior inconsistent statements may be revealed on direct examination without constituting impeachment, as the totality of testimony heard by the jury is what matters. The court also held that when a sentencing departure relies on both valid and invalid reasons, the sentence must be vacated and remanded for resentencing unless the state shows beyond a reasonable doubt that the invalid reasons would not have affected the departure.
[1] A departure sentence grounded on both valid and invalid reasons must be reversed and remanded for re-sentencing unless the state can show beyond a reasonable doubt that t…
[2] Review of reasons for departure from sentencing guidelines does not require an objection in the trial court.
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Join FLexlaw to unlock all legal intelligence“The fact that the inconsistencies in the prior testimony and the testimony at trial were revealed on direct examination rather than on cross did not alter the totality of the testimony heard by the jury.”
Establishes that prior inconsistent statements revealed on direct examination do not constitute impeachment and are admissible.
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Join FLexlaw to unlock all legal intelligenceSloan was convicted of burglary of a structure and grand theft. At trial, the state questioned a co-perpetrator, Grant, regarding prior inconsistent t…
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SHAW, Justice.
We have by petition for review Sloan v. State, 472 So. 2d 488 (Fla. 2d DCA 1985), due to express and direct conflict with Price v. State, 469 So. 2d 210 (Fla. 5th DCA 1985). We have jurisdiction. Art. V, § 3(b)(3), Fla. Const. Sloan was convicted and sentenced for burglary of a structure and grand theft. The trial court permitted the state to question a co-perpetrator, Grant, regarding prior inconsistent testimony. The district court affirmed, finding that the state was not attempting to impeach its witness by revealing the earlier inconsistent statements. The district court relied on its decision in Bell v. State, 473 So. 2d 734, (Fla. 2d DCA 1985), wherein it sanctioned such revelation on direct examination. We have approved Bell in Bell v. State, 491 So. 2d 537 (Fla.1986), and approve this portion of the district court’s decision on the authority of our decision in Bell. The fact that the inconsistencies in the prior testimony and the testimony at trial were revealed on direct examination rather than on cross did not alter the totality of the testimony heard by the jury.
Sloan raises another issue, regarding his sentencing, which has merit. The trial court departed from the recommended sentencing guidelines in this case, citing several reasons. The district court invalidated two of the reasons, but found two reasons adequate. It affirmed in reliance on its holdings in Marshall v. State, 468 So. 2d 255 (Fla. 2d DCA), rev. denied, 472 So. 2d 1181 (Fla.1985), and Williard v. State, 462 So. 2d 102 (Fla. 2d DCA 1985), that, even if some reasons are invalidated, if one or more remaining reasons are clear and convincing, the enhanced sentence will be affirmed. This holding is contrary to our holding in Albritton v. State, 476 So. 2d 158 (Fla.1985), and its progeny that when a sentence departing from the guidelines is grounded on both valid and invalid reasons the sentence should be vacated and the case remanded for resentencing unless the state is able to show beyond a reasonable doubt that the absence of the invalid reasons would not have affected the departure sentence. We therefore quash this portion of the district court’s decision.
The district court’s decision is approved in part, quashed in part and remanded for proceedings consistent with this opinion.
It is so ordered.
MCDONALD, C.J., and BOYD, OVER-TON, EHRLICH and BARKETT, JJ., concur. ADKINS, J., dissents.
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Citator
Cited By (12 total)
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State v. Rousseau, 509 So. 2d 281 (Fla. 1987)…decisions of this Court rendered subsequent to Mischler clearly show that we did not intend Mischler to overrule or modify Albritton. See, e.g., Keys v. State, 500 So. 2d 134 (Fla.1986); Casteel v. State, 498 So. 2d 1249 (Fla.1986); Sloan v. State, 491 So. 2d 276 (Fla.1986); Adams v. State, 490 So. 2d 53 (Fla.1986); Scurry v. State, 489 So. 2d 25 (Fla.1986); Agatone v. State, 487 So. 2d 1060 (Fla.1986).1 For example, in Scurry v. State, we cited Mischler for the proposition that the prohibited reasons set fo…
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Creed Martin Vanover v. State, 498 So. 2d 899 (Fla. 1986)…t “[r]easons for deviating from the guidelines shall not include factors relating to the instant offenses for which convictions have not been obtained.” As in Sloan v. State, 472 So. 2d 488, 490 (Fla. 2d DCA 1985), approved in part, quashed in part, 491 So. 2d 276 (Fla.1986), we must hold that “[t]he presence of that comment within the stated [grounds for departure] more than supports our view that the trial court, at the very least, found the higher crime, for which there was no conviction, a significant ele…
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Lawhorne v. State, 500 So. 2d 519 (Fla. 1986)…xamination about prior inconsistent statements or prior convictions when done in an attempt to ‘soften the blow’ or reduce the harmful consequences.” Eh-rhardt, § 608.2 (citations omitted). [*521] Bell v. State, 491 So. 2d at 538. In Sloan v. State, 491 So. 2d 276 (Fla.1986), we held that the state on direct examination of its witness could reveal the witness’s prior inconsistent statements and question the witness regarding the inconsistencies. “The fact that the inconsistencies in the prior testimony and th…
Previewing 3 of 12 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- City OF Atl. Beach v. Bull, 476 So. 2d 158 (Fla. 1985)
- Albritton v. State, 476 So. 2d 158 (Fla. 1985)
- Bell v. State, 491 So. 2d 537 (Fla. 1986)
- Sloan v. State, 472 So. 2d 488 (Fla. 2d DCA 1985)
- Marshall v. State, 468 So. 2d 255 (Fla. 2d DCA 1985)
- Williard v. State, 462 So. 2d 102 (Fla. 2d DCA 1985)
- Bell v. State, 473 So. 2d 734 (Fla. 2d DCA 1985)
- Price v. State, 469 So. 2d 210 (Fla. 5th DCA 1985)