GUY M. MENDES, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Guy Mendes appealed his sentence imposed after revocation of his probation for aggravated battery. The court affirmed the sentence, holding that the trial court properly scored 36 points for legal constraint based on a computer printout and telephone report indicating Mendes had absconded from probation in New Jersey, despite the appellant's objection that this evidence was insufficient.
The trial court did not err in scoring the points for legal constraint. Where a defendant objects to sentencing information on the basis of its quality or sufficiency but does not dispute the factual accuracy of the information, the trial court need not require the state to produce corroborating non-hearsay evidence.
[1] A defendant's objection to the sufficiency or quality of evidence used to score points at sentencing does not constitute a dispute of the underlying factual accuracy of t…
[2] When a defendant does not dispute the truthfulness of information presented on a rap sheet or similar document at sentencing, corroborating evidence is not required.
Previewing 2 of 3 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“in these circumstances there was no need for the state to produce corroborating evidence”
Establishes the rule that when a defendant objects to sentencing information on grounds of quality/sufficiency rather than accuracy, corroborating evidence is not required.
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Join FLexlaw to unlock all legal intelligenceMendes was on probation following a guilty plea to aggravated battery. His probation officer charged him with violating four conditions of probation, …
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GLICKSTEIN, Judge.
This is an appeal of sentence upon violation of probation. We affirm.
Appellant was on probation after pleading guilty to a charge of aggravated battery. His probation officer charged him by affidavit with violation of four conditions of probation. His probation was revoked and a sentencing hearing was held. His sentencing scoresheet reflected 36 points for legal constraint based on a computer printout and a telephone call to authorities in New Jersey. The information from these sources was that appellant absconded from New Jersey while on probation there. Appellant’s counsel objected to these points, contending the printout was not clear and convincing evidence of appellant’s probationary status in New Jersey. The impact of these points was to move the sentence up one cell. Appellant was sentenced to a term of four and one-half years in prison. He appealed. The issue is whether the trial court erred in scoring points for appellant’s purported legal constraint of a probation in New Jersey. We conclude that it did not.
In McKay v. State, 504 So. 2d 1280 (Fla. 1st DCA 1986), appellant, as here, objected to the court’s consideration at sentencing to prior convictions information from the rap sheet, on the basis that it was hearsay, but did not dispute its truth. The court approved the trial court’s conclusion that in these circumstances there was no need for the state to produce corroborating evidence, and cited several case authorities for this conclusion. Id. at 1283. We agree. See also, Baker v. State, 493 So. 2d 515, 516 (Fla. 1st DCA 1986).
While appellant tries to make it appear that his objection challenged the correctness of the information from New Jersey, the record does not support this. The objection was to the printout’s and perhaps the phone report’s quality or sufficiency, not to their accuracy. One might argue, as appellant does in his reply brief, that he challenged the correctness of assigning the points based on this information, but that is not what is meant by correctness in the context of the pertinent law. The challenge had to be to the factuality of the New Jersey legal constraint, and was not. To this day, appellant has not said it was not true, but only that the proof of his continued probation in New Jersey was inadequate. Accordingly, the court did not err in failing to demand corroborating non-hearsay evidence from the state.
HERSEY, C.J., and LETTS, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Jennings v. State, 595 So. 2d 251 (Fla. 1st DCA 1992)…ver, where the objection to prior convictions on a rap sheet is predicated solely on hearsay, with no dispute as to their truth, the state need not produce corroborating evidence. McKay v. State, 504 So. 2d 1280 (Fla. 1st DCA 1986); Mendes v. State, 522 So. 2d 1002 (Fla. 4th DCA 1988). Still, “[IJegal status points are to be assessed only once whether there are one or more offenses at conviction.” Flowers v. State, 586 So. 2d 1058, 1060 (Fla. 1991). The scoring of legal constraint points was appropriate in th…
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de Jesus v. State, 684 So. 2d 875 (Fla. 3d DCA 1996)…denied, 386 So. 2d 642 (Fla.1980). There is also no merit in the claim that the state did not appropriately establish the basis for the defendant’s sentencing as a habitual offender. See Eutsey v. State, 383 So. 2d 219 (Fla.1980); Mendes v. State, 522 So. 2d 1002 (Fla. 4th DCA 1988); McKay v. State, 504 So. 2d 1280 (Fla. 1st DCA 1986). We do agree with both parties that Dejesus was improperly convicted of two counts of burglary with an assault on the basis of attacks on two separate victims within the home.…
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McMILLAN v. State, 541 So. 2d 152 (Fla. 4th DCA 1989)…II alleging the use of a 2 x 4 timber. Adding these additional twenty-eight (28) points to the guideline scoresheet the total surpasses the figure necessary to support the sentence of fifteen (15) years imposed upon the appellant. Mendes v. State, 522 So. 2d 1002 (Fla. 4th DCA 1988), addresses appellant’s objection to the form utilized to prove prior restraint without attacking its truthfulness. AFFIRMED. WALDEN and GARRETT, JJ., concur. GLICKSTEIN, J., dissents with opinion.…
Authorities Cited
- McKAY v. State, 504 So. 2d 1280 (Fla. 1st DCA 1986)
- Baker v. State, 493 So. 2d 515 (Fla. 1st DCA 1986)