MICHAEL COWLES, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Michael Cowles appealed his convictions for battery, attempted sexual battery, and petit theft, raising three issues regarding admission of the victim's prior consistent statements, criminal venue, and habitual offender sentencing. The Florida District Court of Appeal affirmed all convictions and sentences, finding no error on any of the three issues raised.
The prior consistent statements were properly admitted under both the prior consistent statements rule and the excited utterance exception to hearsay. The state made out a prima facie case of criminal venue with sufficient testimony for the jury to find the events occurred in Pasco County. The sentencing issue had been addressed adversely to the appellant in prior court decisions.
[1] Prior consistent statements of a victim are admissible under the "prior consistent statement" exception to the hearsay rule when made before the victim has a motive to fa…
[2] Prior consistent statements of a victim are admissible under the "excited utterance" exception to the hearsay rule when made under the stress of excitement caused by a st…
Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“Her statements were equally admissible as part of the excited utterance exception to the hearsay rule as found in section 90.803(2), Florida Statutes (1985).”
Establishes the court's reasoning for admitting the victim's prior statements under the excited utterance exception
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceCowles was convicted of battery, attempted sexual battery, and petit theft. The victim made prior consistent statements to witnesses that she had been…
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DANAHY, Chief Judge.
We have considered the three issues the appellant raises in this appeal from his convictions and sentences for battery, attempted sexual battery, and petit theft and find no error. Accordingly, we affirm.
Concerning the first issue, we find that the requirements of section 90.801(2)(b), Florida Statutes (1985), were met and that the victim’s prior consistent statements were properly admitted into evidence. Her statements to the witnesses that she was assaulted, the statements at issue here, occurred prior to her knowledge that she was out of Hillsborough County and in Pasco County (where being out of Hillsbor-ough County without her probation officer’s permission was the implied motive to fabricate). Her statements were equally admissible as part of the excited utterance exception to the hearsay rule as found in section 90.803(2), Florida Statutes (1985).
Addressing the second issue, we find that the state did make out a prima facie case of criminal venue. There was testimony from which the jury, as fact-finder, could find that the events charged took place in Pasco.
Finally, we note that the issue dealing with the appellant’s sentence as an habitual offender, above the statutory maximum but below the presumptive range of the sentencing guidelines, has been dealt with by this court in Smith v. Wainwright, 508 So. 2d 768 (Fla. 2d DCA 1987), adversely to the appellant’s contentions. Accord Wooten v. State, 515 So. 2d 331 (Fla. 3d DCA 1987); Myers v. State, 499 So. 2d 895 (Fla. 1st DCA 1986); Winters v. State, 500 So. 2d 303 (Fla. 1st DCA 1986). Because we have certified the question before us in previous cases presenting the same scenario, Hoefert v. State, 509 So. 2d 1090 (Fla. 2d DCA 1987), Washington v. State, 508 So. 2d 565 (Fla. 2d DCA 1987), and Sims v. State, 513 So. 2d 671 (Fla. 2d DCA 1987), we do so again because we believe that it presents a continuing question of great public importance, to-wit:
IS THE HABITUAL OFFENDER STATUTE STILL AN EFFECTIVE BASIS ON WHICH TO EXCEED THE STATUTORY MAXIMUM AS LONG AS THE SENTENCE IMPOSED DOES NOT EXCEED THE GUIDELINES RECOMMENDATION?
Affirmed.
LEHAN and SCHOONOVER, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Myers v. State, 499 So. 2d 895 (Fla. 1st DCA 1986)
- Hoefert v. State, 509 So. 2d 1090 (Fla. 2d DCA 1987)
- Winters v. State, 500 So. 2d 303 (Fla. 1st DCA 1986)
- Smith v. Louie L. Wainwright, 508 So. 2d 768 (Fla. 2d DCA 1987)
- Sims v. State, 513 So. 2d 671 (Fla. 2d DCA 1987)
- Washington v. State, 508 So. 2d 565 (Fla. 2d DCA 1987)
- Tyner v. State, 508 So. 2d 565 (Fla. 2d DCA 1987)
- Wooten v. State, 515 So. 2d 331 (Fla. 3d DCA 1987)