DAVID SYLVESTER LOGAN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Florida appellate court affirmed conviction but vacated sentence because guidelines scoresheet improperly included points for a severed charge for which defendant had not yet been convicted, requiring resentencing.
A guidelines scoresheet that includes points for a charge that has been severed for separate trial and for which the defendant has not yet been convicted must be corrected, resulting in a lower presumptive sentence requiring resentencing.
[1] A sentencing guidelines scoresheet may not include points for a charge that has been severed for separate trial when the defendant has not yet been convicted of that char…
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Join FLexlaw to unlock all legal intelligenceAppellant Logan was convicted of a crime, but the guidelines scoresheet used at sentencing included points for an additional offense that had been sev…
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ORFINGER, Judge.
The State concedes that the guidelines scoresheet includes points for an “additional offense at conviction” for which appellant had not yet been convicted because that charge had been severed for separate trial. Eliminating these points results in a lower presumptive sentence, so we vacate the sentence and remand for resentencing. There is no evidence in the record to support defendant’s assertion that the trial court imposed a more severe penalty because defendant asserted his right to go to trial. Any such penalty would be clearly unconstitutional, McEachem v. State, 388 So. 2d 244 (Fla. 5th DCA 1980), but the sentence imposed was within the limits of what was believed to be the appropriate presumptive guidelines sentence.
We reject appellant’s contention that the trial court erred in refusing to allow the arresting officer or defendant’s captor to testify as to defendant’s exculpatory statements made over four hours after the burglary. The defendant chose not to testify at trial. The self-serving statements, made under circumstances showing their lack of trustworthiness, are clearly hearsay and are not admissible under any of the hearsay exceptions. § 90.801, Fla. Stat. (1985); Fagan v. State, 425 So. 2d 214 (Fla. 4th DCA 1983). The trial court did not abuse its discretion in excluding this proposed hearsay testimony.
Conviction AFFIRMED, Sentence VACATED and REMANDED.
DAUKSCH and SHARP, JJ., concur.
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Citator
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Cotton v. State, 763 So. 2d 437 (Fla. 4th DCA 2000)…al. When a defendant seeks to introduce his own out-of-court exculpatory statement for the truth of the matter stated, it is inadmissible hearsay. Ehrhardt, Florida Evidence § 801.3 (1998); Lott v. State, 695 So. 2d 1239 (Fla.1997); Logan v. State, 511 So. 2d 442 (Fla. 5th DCA 1987); Fagan v. State, 425 So. 2d 214 (Fla. 4th DCA 1983). However, if a defendant’s out-of-court statement is not offered by the defendant to ■ prove the truth of its content, it is not hearsay and should be admitted, provided the pur…1 / 2
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Guerrero v. State, 532 So. 2d 75 (Fla. 3d DCA 1988)…214 (Fla. 4th DCA 1983) (officer’s testimony of defendant’s exculpatory statements at time of arrest is inadmissible hearsay); Watkins v. State, 342 So. 2d 1057 (Fla. 1st DCA) (same), cert. denied, 353 So. 2d 680 (Fla.1977). See also Logan v. State, 511 So. 2d 442, 443 (Fla. 5th DCA 1987) (defendant’s self-serving statements made over four hours after crime are inadmissible hearsay); however, where the state has “opened the door” by eliciting testimony as to part of the conversation, defendant is entitled to…
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State v. Elkin, 595 So. 2d 119 (Fla. 3d DCA 1992)…ate, 532 So. 2d 75 (Fla. 3d DCA 1988); Morris v. State, 561 So. 2d 646 (Fla. 3d DCA), review denied, 576 So. 2d 289 (Fla.1990); Fagan v. State, 425 So. 2d 214 (Fla. 4th DCA 1983); Lowery v. State, 402 So. 2d 1287 (Fla. 5th DCA 1981); Logan v. State, 511 So. 2d 442 (Fla. 5th DCA 1987); Watkins v. State, 342 So. 2d 1057 (Fla. 1st DCA), cert. denied, 353 So. 2d 680 (Fla.1977). To the extent that Moore v. State, 530 So. 2d 61 (Fla. 1st DCA 1988), conflicts with our holding here, we reject its requirement that th…
Previewing 3 of 9 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- McEACHERN v. State, 388 So. 2d 244 (Fla. 5th DCA 1980)
- Scottie Dale Fagan v. State, 425 So. 2d 214 (Fla. 4th DCA 1983)