WILLIE BENJAMIN CALHOUN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Willie Calhoun appealed his convictions for disorderly conduct, resisting an officer with force, and battery on a law enforcement officer, challenging the exclusion of impeachment evidence and the imposition of costs and attorney's fees. The appellate court affirmed the convictions but reversed the sentence regarding costs and attorney's fees.
The trial court did not err in excluding the impeachment testimony because Deputy Manger made no statement inconsistent with her alleged prior statement; she merely could not recall making the statement. The trial court erred in imposing costs and attorney's fees on the indigent defendant without notice and opportunity to object, as an affidavit of indigency does not waive notice and a hearing.
[1] A witness's inability to recall making a prior statement does not constitute an inconsistent prior statement for impeachment purposes under section 90.608(1)(a), Florida…
[2] Impeachment of a witness by proof of a prior inconsistent statement is permissible only when the witness has made a statement inconsistent with a prior statement and then…
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Join FLexlaw to unlock all legal intelligence“No inconsistent prior statement of the deputy is shown to have been made justifying application of section 90.608(l)(a), Florida Statutes (1985), of the evidence code.”
Establishes the standard for admitting impeachment evidence through testimony of another witness—the witness must have made an inconsistent statement, not merely be unable to recall a prior statement.
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Join FLexlaw to unlock all legal intelligenceDefendant was convicted of disorderly conduct, resisting an officer with force, and battery on a law enforcement officer. At trial, the defense sought…
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LEHAN, Judge.
Defendant appeals from his convictions and sentences for disorderly conduct, resisting an officer with force, and battery on a law enforcement officer. We affirm the convictions and affirm the sentences, except for the imposition of court costs.
As his first point on appeal defendant contends that the trial court erred in ruling that defendant could not impeach the testimony of one of the state’s witnesses. That witness, Deputy Manger, was asked on cross-examination if she had ever stated that she had a reputation for being an aggressive female officer. The deputy replied that she could not recall ever making that statement. The defense called as a witness defendant’s former attorney to testify that he had heard Deputy Manger make such a statement. However, the trial court ruled that the defense could not in that manner impeach the deputy’s testimony. We agree with the trial court. No inconsistent prior statement of the deputy is shown to have been made justifying application of section 90.608(l)(a), Florida Statutes (1985), of the evidence code.
The defendant cites Williams v. State, 472 So. 2d 1350, 1352 (Fla. 2d DCA 1985), to support his contention. However, Williams stands for the proposition that if a witness makes a statement which is inconsistent with a prior statement and then cannot recall making the prior statement, the fact that the prior statement was made can be proved by the testimony of another witness. In contrast, in this case Deputy Manger made no statement inconsistent with her alleged prior statement. She merely could not recall making the statement.
Because we have held that there was no error in the ruling that the testimony of defendant’s former attorney was not admissible, we need not reach defendant’s additional argument under his first point that the trial court erred in ruling that the testimony would have waived the attorney-client privilege.
As his second point on appeal, the defendant contends that because he is indigent it was error to impose costs and attorney’s fees without notice and an opportunity to object pursuant to Jenkins v. State, 444 So. 2d 947 (Fla.1984). We agree. We note that defendant’s affidavit of indigency did not waive notice or a hearing. This portion of defendant’s sentence is reversed and remanded for proceedings consistent with Jenkins.
Defendant’s convictions are affirmed, and his sentence is reversed with respect to costs and attorney’s fees and remanded for proceedings consistent with this opinion.
RYDER, A.C.J., and CAMPBELL, J., concur.
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Citator
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Brooks v. State, 918 So. 2d 181 (Fla. 2005)…urts have held that a witness’s inability to recall making a prior statement is not synonymous with providing trial testimony that is inconsistent with a prior statement. See James v. State, 765 So. 2d 763, 766 (Fla. 1st DCA 2000); Calhoun v. State, 502 So. 2d 1364, 1365 (Fla. 2d DCA 1987) (deeming it improper to impeach a witness who testified that she could not recall stating that she had a reputation as an aggressive female police officer with the testimony of another witness who heard her make such a state…
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James v. State, 765 So. 2d 763 (Fla. 1st DCA 2000)…atement made to Roosevelt Brown. Further, we also hold that it was error to allow the impeachment because Jones’ trial testimony that he had no recollection was not truly inconsistent with his previous statement made to Brown. See Calhoun v. State, 502 So. 2d 1364, 1365 (Fla. 2d DCA 1987). On this matter, we agree with the reasoning employed in State v. Staley, 995 P. 2d 1217, 1220, 165 Or.App. 395 (2000): The controlling issue on appeal is whether it was appropriate to impeach [a witness’] asserted lack of…
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Ramirez v. State, 922 So. 2d 386 (Fla. 1st DCA 2006)…generally Gilliam v. State, 582 So. 2d 610, 611 (Fla.1991) (noting that no affidavits had been filed in concluding that the motion did not allege grounds to believe trial publicity had reached juror till after the verdict); Orange County v. Fuller, 502 So. 2d 1364, 1364 (Fla. 5th DCA 1987) (quashing an order scheduling post trial interviews of jurors because the motion was not supported by affidavits and its allegations were “speculative, conclusory, or concern[ed] matters that inhere in the verdict itself’).…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Jenkins v. State, 444 So. 2d 947 (Fla. 1984)
- Barney Dale Williams v. State, 472 So. 2d 1350 (Fla. 2d DCA 1985)