BYRON D. DELIFORD, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Deliford appeals his conviction and sentence for a crime. The appellate court affirmed the conviction but reversed the sentence because the trial court improperly relied on habitual offender status to depart from sentencing guidelines, which the Florida Supreme Court had since ruled invalid.
The court affirmed the conviction on the similar act evidence and closing argument issues, finding the evidence relevant and admissible and the argument proper. However, the court reversed the sentence because habitual offender status is not a valid basis for departing from sentencing guidelines under controlling Florida Supreme Court precedent.
[1] Similar act evidence is admissible to give an intelligent account of the crime charged, even if the defendant was previously acquitted of the prior act.
[2] A defendant must object to a prosecuting attorney's closing argument at the time it is made to preserve the issue for appellate review.
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Join FLexlaw to unlock all legal intelligence“the defendant was not, in fact, acquitted of the auto theft”
Establishes that the auto theft evidence was properly admitted because it was not barred by an acquittal on that charge
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Join FLexlaw to unlock all legal intelligenceDeliford was convicted by jury verdict. The trial court admitted similar act evidence of an auto theft to establish the crime charged. The prosecution…
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PER CURIAM.
The defendant Byron D. Deliford appeals a judgment of conviction and sentence entered against him on an adverse jury verdict. We affirm the judgment of conviction, reverse the sentence, and remand for resentencing, based on the following briefly stated legal analysis.
First, we reject the defendant’s contention that the trial court erred in allowing the state to introduce similar act evidence of an auto theft for which the defendant had previously been found not guilty because, as counsel conceded at oral argument, the defendant was not, in fact, acquitted of the auto theft. We further reject the defendant’s contention, made at oral argument, that the auto theft evidence was not otherwise admissible, as such evidence was plainly relevant in order to give an intelligent account of the crime charged. See Kinchen v. State, 297 So. 2d 341, 341 (Fla. 3d DCA 1974); Feldman v. State, 212 So. 2d 21, 22 (Fla. 3d DCA 1968); Homer v. State, 149 So. 2d 863, 865 (Fla. 3d DCA 1963).
Second, we reject the defendant’s contention that the trial court erred in denying a defense motion for a mistrial based on the prosecuting attorney’s closing argument to the jury because: (a) the defendant did not object to the complained-of argument until after the prosecuting attorney had completed his argument, and, accordingly, the point has not been properly preserved for appellate review, see Wilson v. State, 436 So. 2d 908, 910 (Fla.1983); State v. Cumbie, 380 So. 2d 1031, 1033 (Fla.1980); Clark v. State, 363 So. 2d 331, 334-35 (Fla.1978), and, (b) the complained-of argument was entirely proper in any event. See Francis v. State, 384 So. 2d 967, 968-69 (Fla. 3d DCA 1980); Delaney v. State, 342 So. 2d 1098, 1099 (Fla. 3d DCA 1977); Wilson v. State, 305 So. 2d 50, 52 (Fla. 3d DCA 1975).
Third, we accept the state’s concession that the defendant’s sentencing point has merit. The Florida Supreme Court has held, subsequent to the imposition of sentence below, that habitual offender status of a defendant is not a valid basis for departing from the sentencing guidelines. Whitehead v. State, 498 So. 2d 863 (Fla.1986). Because the defendant’s habitual offender status was the sole reason given by the trial court for departing from the sentencing guidelines in this case, the sentence imposed must be reversed and the cause remanded for resentencing.
The final judgment of conviction under review is affirmed. The sentence under review is reversed and the cause is remanded to the trial court with directions to re-sentence the defendant within the sentencing guidelines.
Affirmed in part; reversed in part and remanded.
Cases With Similar Vibessemantic neighbors from the corpus
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Kern Ron Davis v. State, 590 So. 2d 496 (Fla. 3d DCA 1991)…t present reversible error, absent a showing of a fundamental error. See Nixon v. State, 572 So. 2d 1336, 1341 (Fla.1990), cert. denied, — U.S. -, 112 S.Ct. 164, 116 L.Ed.2d 128 (1991); State v. Cumbie, 380 So. 2d 1031 (Fla.1980); Deliford v. State, 505 So. 2d 523, 524 (Fla. 3d DCA 1987). We agree that (a) the combined effect of the first two of the complained-of arguments were sufficiently improper, and (b) the evidence at trial was otherwise sharply in conflict as to whether a robbery or petit theft was c…
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Morganti v. State, 510 So. 2d 1182 (Fla. 4th DCA 1987)…o the Fifth District. Frierson v. State, 511 So. 2d 1016 (Fla. 5th DCA 1987). Only the Third District, without specifically addressing the issue, has held that, in such a case, the sentence on remand must be within the Guidelines. Deliford v. State, 505 So. 2d 523 (Fla. 3d DCA 1987); Albury v. State, 503 So. 2d 460 (Fla. 3d DCA 1987). While we believe that an affirmance is appropriate, we note that the problem created by this case could have been avoided had the trial court listed all of its reasons for depa…
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McGRIFF v. State, 517 So. 2d 94 (Fla. 3d DCA 1987)…Fla.1987); Hester v. State, 503 So. 2d 1342 (Fla. 1st DCA 1987); Fla.R. Crim.P. 3.701(d)(ll). The recidivistic nature of a defendant is not a valid reason for departing from the sentencing guidelines. Whitehead, 498 So. 2d at 865; Deliford v. State, 505 So. 2d 523 (Fla. 3d DCA 1987). However, the habitual offender statute may be used to exceed the statutory maximum so long as the sentence does not exceed the guidelines. Condiles, 512 So. 2d at 331; Myers v. State, 499 So. 2d 895 (Fla. 1st DCA 1986). The enhan…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited (11 total)
- Clark v. State, 363 So. 2d 331 (Fla. 1978)
- Whitehead v. State, 498 So. 2d 863 (Fla. 1986)
- State v. Cumbie, 380 So. 2d 1031 (Fla. 1980)
- Wilson v. State, 436 So. 2d 908 (Fla. 1983)
- Horner v. State, 149 So. 2d 863 (Fla. 3d DCA 1963)
- Feldman v. State, 212 So. 2d 21 (Fla. 3d DCA 1968)
- Danford Francis, Jr. v. State, 384 So. 2d 967 (Fla. 3d DCA 1980)
- Kinchen v. State, 297 So. 2d 341 (Fla. 3d DCA 1974)
- Sasser v. State, 305 So. 2d 50 (Fla. 3d DCA 1974)
- Wilson v. State, 305 So. 2d 50 (Fla. 3d DCA 1974)