LEROY THOMPSON, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Thompson appealed his conviction for two third-degree felonies, challenging admission of tape recordings and his sentencing as a habitual offender. The court assumed the tape recordings were erroneously admitted but found harmless error; however, it reversed the sentencing because the trial court imposed concurrent 17-year sentences that exceeded the legal maximum for each count and should have been imposed consecutively.
Assuming the tape recordings were erroneously admitted, the error was harmless. However, the sentencing order was erroneous because the trial court imposed concurrent sentences totaling 17 years when the legal maximum for each count was only 10 years; instead, consecutive sentences must be imposed to achieve the 17-year total within legal limits.
[1] Even if tape recordings were improperly admitted into evidence, the error is harmless if it does not affect the outcome of the trial.
[2] A trial court's reasons for sentencing a defendant as a habitual offender may be dictated into the record.
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“Assuming, without deciding, that the tape recordings should not have been admitted into evidence at defendant's trial, we conclude that the error was harmless.”
Establishes the harmless error standard applied to the tape recording issue
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Join FLexlaw to unlock all legal intelligenceThompson was convicted of two third-degree felonies: attempted sexual battery and false imprisonment. The sentencing guidelines scoresheet recommended…
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PER CURIAM.
Assuming, without deciding, that the tape recordings should not have been admitted into evidence at defendant’s trial, we conclude that the error was harmless. State v. DiGuilio, 491 So. 2d 1129 (Fla.1986); see Coy v. Iowa, 487 U.S. 1012, 1021, 108 S.Ct. 2798, 2803, 101 L.Ed.2d 857, 867 (1988). The trial court’s reasons for sentencing the defendant as a habitual offender, see § 775.084(3), Fla.Stat. (1987), were dictated into the record. That procedure has been approved in Parker v. State, 546 So. 2d 727 (Fla.1989).
We observe, however, that the guidelines scoresheet for the defendant recommended a sentencing range of 17 to 22 years. Defendant was convicted of two third degree felonies, each of which ordinarily carries a five year penalty. See §§ 794.011(5) & 777.04(4)(c), Fla.Stat. (1987) (attempted sexual battery); Id. § 787.02 (false imprisonment). Pursuant to the habitual offender act, the maximum penalty for each of the third degree felonies was enhanced to ten years on each count. See § 775.084(4)(a)3, Fla.Stat. (Supp.1988). The trial court sentenced defendant to 17 years on each count, to run concurrently. That constituted error which must be remanded for correction.
The sentencing guidelines do not increase the maximum legal sentence. Where, as here, the trial court has decided to impose the guideline sentence, but the guideline sentence exceeds the maximum legal sentence on each count, the trial court must impose consecutive sentences in order to come as close as possible to the guidelines scoresheet recommendation. Branam v. State, 554 So. 2d 512 (Fla.1990). The trial court did not have the benefit of this recent Florida Supreme Court pronouncement at the time it imposed sentence.
The trial judge has already chosen the sentence he deemed appropriate: 17 years, which is within the guideline range. In order to impose the sentence within the legal máximums and consistently with the requirements of Branam, it will be necessary for the trial court to impose consecutive sentences on the two counts, totalling 17 years when combined. We therefore reverse the sentencing order and remand for correction of sentence. In all other respects the conviction is affirmed.
Affirmed in part, reversed in part, and remanded.
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White v. State, 618 So. 2d 354 (Fla. 1st DCA 1993)…ines provisions of section 921.001, Florida Statutes (1989). See Section 775.084(4)(e); Holley v. State, 577 So. 2d 624, 625 (Fla. 1st DCA1991); Owens v. State, 560 So. 2d 1260 (Fla. 1st DCA1990). We find the following language in Thompson v. State, 558 So. 2d 111, 112 (Fla. 3d DCA1990), instructive as to those instances, like Appellant’s sentencing hearing, where the trial court sentencing a habitual offender aims to approximate the bottom range of the defendant’s guidelines recommendation. Where, as here,…
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Jones v. State, 664 So. 2d 1116 (Fla. 4th DCA 1995)…on that this subdivision of the sentence by counts renders legal the otherwise excessive cumulative sentence. [*1118] There is such authority, but it is distinguishable. In McClain v. State, 633 So. 2d 1131 (Fla. 3d DCA 1994), and Thompson v. State, 558 So. 2d 111 (Fla. 3d DCA 1990), the third district held that a cumulative sentence may exceed the statutory maximum for the most serious offense, provided that the individual sentences for each count do not. In those cases, the court approved total sentences th…
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Donnie McCLAIN v. State, 633 So. 2d 1131 (Fla. 3d DCA 1994)…actually imposed and remand to permit the trial court to reimpose the twenty-two-year total term of imprisonment by structuring consecutive sentences on each of the three counts which are respectively within the statutory maximum. Thompson v. State, 558 So. 2d 111 (Fla. 3d DCA 1990). Vacated, remanded.…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. DiGUILIO, 491 So. 2d 1129 (Fla. 1986)
- COY v. Iowa, 487 U.S. 1012 (U.S. 1988)
- Timmie Lewis Parker v. State, 546 So. 2d 727 (Fla. 1989)
- Branam v. State, 554 So. 2d 512 (Fla. 1990)