JORGE LLIDA, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Jorge Llida appeals his conviction and sentencing for attempted sexual battery, kidnapping, robbery, and aggravated battery. The court affirms the convictions and preguideline sentences but strikes the alternative guideline sentencing and improper retention of jurisdiction over concurrent sentences.
The court affirmed the convictions and preguideline sentences. Any error in prosecution closing argument was harmless given the overwhelming evidence. The trial court should have honored the defendant's election to be sentenced under preguideline statutory provisions for crimes committed before the guidelines' effective date. The trial court erred in retaining jurisdiction over one-third of each concurrent sentence; it should have retained jurisdiction only over the sentence imposing the greatest amount of time.
[1] Prosecution comments during closing argument are harmless error when the evidence of guilt is overwhelming.
[2] A defendant who elects to be sentenced under pre-guideline statutory provisions for crimes committed prior to the effective date of the guidelines should be sentenced acc…
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Join FLexlaw to unlock all legal intelligence“Evidence of the defendant's guilt was overwhelming. He was immediately identified by the victim, and subsequently his photo was picked out of the lineup by the victim. He confessed at the scene of the crime and at the police station.”
Establishes the overwhelming evidence of guilt supporting harmlessness of any prosecutorial error.
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Join FLexlaw to unlock all legal intelligenceLlida was convicted by jury of attempted sexual battery, kidnapping, robbery, and aggravated battery. He was immediately identified by the victim, who…
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PER CURIAM.
The appellant was charged with attempted sexual battery, kidnapping, robbery and aggravated battery. Following adverse jury verdicts, he was sentenced to a term of 15 years imprisonment each, as to the counts of attempted sexual battery, robbery and aggravated battery, to run concurrently with each other. He was sentenced to a term of 99 years imprisonment on the kidnapping count to run concurrently with the sentence on the attempted sexual battery count.
The trial court retained jurisdiction for a period of one-third of the total sentences. In the alternative, the trial court sentenced the appellant pursuant to the sentencing guidelines, departing therefrom and sentenced the appellant to three fifteen-year terms on the attempted sexual battery, robbery and aggravated battery counts and to 45 years on the kidnapping count, all sentences to run consecutively. In this instance the trial court retained jurisdiction over one-third of the cumulative sentences.
The appellant urges error in a prosecution comment in closing argument and in the sentencing, contending that he was entitled to be sentenced by his election with the preguidelines provisions of the statute, and that the trial court erred in retaining jurisdiction over one-third of each of the concurrent sentences. We affirm.
Evidence of the defendant’s guilt was overwhelming. He was immediately identified by the victim, and subsequently his photo was picked out of the lineup by the victim. He confessed at the scene of the crime and at the police station. Error, if any, in the prosecution comments was merely harmless in view of the overwhelming evidence. State v. Murray, 443 So. 2d 955 (Fla.1984); Breines v. State, 462 So. 2d 831 (Fla. 4th DCA 1985). As to the sentences, because the defendant elected to be sentenced by the preguideline statutory provisions for crimes committed prior to the effective date of the guidelines, this election should be honored. Parsons v. State, 470 So. 2d 834 (Fla. 2d DCA 1985); Jordan v. State, 460 So. 2d 477 (Fla. 2d DCA 1984); Rodriquez v. State, 458 So. 2d 899 (Fla. 2d DCA 1984).
The trial judge should only have retained jurisdiction over one-third of the sentence, wherein the greatest amount of time was given. Emshwiller v. State, 464 So. 2d 1339 (Fla. 2d DCA 1985); Maddox v. State, 438 So. 2d 959 (Fla. 2d DCA 1983); Section 947.16(4) Florida Statutes (1985).
Therefore, for the reasons above stated, that portion of the sentence that relates to alternative sentencing under the guidelines is stricken, and any retention of jurisdiction on the concurrent sentences is likewise stricken as amended. The adjudications and sentences under the preguideline statute are affirmed.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Bacallao v. State, 513 So. 2d 738 (Fla. 3d DCA 1987)…ence pointing to the defendant’s guilt is so overwhelming that we may confortably conclude, beyond a reasonable doubt, that any error resulting from the comment was harmless. See Michaels v. State, 505 So. 2d 694 (Fla. 4th DCA 1987); Llida v. State, 501 So. 2d 162 (Fla. 3d DCA 1987).…
Authorities Cited
- State v. Murray, 443 So. 2d 955 (Fla. 1984)
- Jordan v. State, 460 So. 2d 477 (Fla. 2d DCA 1984)
- Rodriguez v. State, 458 So. 2d 899 (Fla. 2d DCA 1984)
- Parsons v. State, 470 So. 2d 834 (Fla. 2d DCA 1985)
- Maddox v. State, 438 So. 2d 959 (Fla. 2d DCA 1983)
- Breines v. State, 462 So. 2d 831 (Fla. 4th DCA 1984)
- Dude Emshwiller v. State, 464 So. 2d 1339 (Fla. 2d DCA 1985)