LAWRENCE SMITH, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The Florida District Court of Appeal affirmed Lawrence Smith's burglary conviction but reversed his habitual offender sentence because the trial court failed to make required written or oral findings that an enhanced sentence was necessary to protect the public. The court held that applying a subsequent amendment to the sentencing statute retroactively would constitute an ex post facto violation.
The trial court did not err in admitting testimony about the alias because such evidence was relevant to concealment of identity. However, the trial court erred in imposing a habitual offender sentence without making required written or oral findings that an enhanced sentence was necessary to protect the public. Retroactive application of an amended sentencing statute that omitted this requirement would violate the Ex Post Facto Clause.
[1] A defendant's use of an alias is relevant evidence when the defendant provided the alias to officers questioning them about a crime, thereby concealing their true identit…
[2] A contention regarding the admissibility of testimony concerning a defendant's use of an alias is not preserved for appeal if no objection was made to the testimony at tr…
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Join FLexlaw to unlock all legal intelligence“His use of an alias was relevant. He gave the alias to the officers who questioned him about the burglary and thereby concealed his true identity.”
Establishes that alias testimony was properly admitted because it was relevant to identity concealment.
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Join FLexlaw to unlock all legal intelligenceLawrence Smith was convicted of burglary. During questioning by officers, Smith provided police with an alias, thereby concealing his true identity. T…
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LEHAN, Judge.
We affirm defendant's conviction for burglary. Contrary to defendant’s contention, we do not conclude that the trial court erred in denying defendant's motion in limine to exclude testimony concerning defendant’s use of an alias. His use of an alias was relevant. He gave the alias to the officers who questioned him about the burglary and thereby concealed his true identity. See § 90.404(2)(a), Florida Statutes (1987). Also, the contention was not preserved for appeal by an objection to the testimony concerning his use of an alias. See Correll v. State, 523 So. 2d 562, 566 (Fla.), cert. denied, — U.S. -, 109 S.Ct. 183, 102 L.Ed.2d 152 (1988).
We reverse defendant’s sentence as an habitual offender.
The trial court did not find either in writing or orally on the record that an enhanced sentence was necessary to protect the public from further criminal activity as required by section 775.084(4)(a), Florida Statutes (1987), which was in effect at the time of the crime. While section 775.084(4)(a) was amended to omit that requirement and the amendment was in effect at the time of defendant’s sentencing, application of the amendment to defendant’s sentence would constitute an ex post facto violation. The reason is that defendant was disadvantaged by the amendment in that application of the amendment would essentially foreclose any challenge to defendant’s habitual offender sentence on appeal. We do not agree with the state’s argument that the amendment did no more than effect a procedural change. See State v. McGriff 537 So. 2d 107, 108 (Fla.1989) (retroactive application of an amendment to the sentencing guidelines which precluded appellate review of an upward departure for which the trial court used invalid reasons if the trial court also used a valid reason would constitute an ex post facto violation because defendant was disadvantaged by the amendment).
In this case, as in McGriff, the amendment would effectively remove defendant’s ability to obtain appellate review of the enhanced sentence. The sentence is reversed and the cause remanded for resentencing. On remand the trial court may again impose an habitual offender sentence if proper findings are made. See Roberts v. State, 559 So. 2d 289 (Fla. 2d DCA 1990) [15 F.L.W. D834]; Scott v. State, 446 So. 2d 261, 262 (Fla. 2d DCA 1984).
SCHOONOVER, A.C.J., and FRANK, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
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Wahl v. State, 568 So. 2d 1303 (Fla. 2d DCA 1990)…ial court could alternatively sentence Wahl under the amended version of the habitual offender statute, section 775.084, Florida Statutes (1989), because the amendment occurred after the date on which Wahl committed his offenses. See Smith v. State, 561 So. 2d 1281 (Fla. 2d DCA 1990). Because the only reason given for departure is invalid, we reverse Wahl’s sentences and remand for resentencing within the recommended guidelines range. Shull v. Dugger, 515 So. 2d 748 (Fla.1987). We find no merit in Wahl’s fin…
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Williams v. State, 614 So. 2d 640 (Fla. 2d DCA 1993)…its discretion in this regard. However, the appellant is correct to point out that the points added for the unadjudicated crimes require us to reverse and remand for resentencing with a properly prepared scoresheet before the court. Culver v. State, 561 So. 2d 1281 (Fla. 2d DCA 1990). DANAHY, A.C.J., and HALL, J., and ROBERTS, SUSAN W., Associate Judge, concur. . Wright specifically declined to address the issue whether stating that a named officer/victim is a law enforcement officer in charging the jury in…
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Robinson v. State, 656 So. 2d 190 (Fla. 3d DCA 1995)…s case in admitting in evidence police testimony that the defendant gave several different names and dates of birth to the police when arrested. Cabrera v. State, 576 So. 2d 1358, 1359 (Fla. 3d DCA), aff'd, 589 So. 2d 287 (Fla.1991); Smith v. State, 561 So. 2d 1281, 1282 (Fla. 2d DCA 1990). Nor has any reversible error been shown in the trial court’s denial of defendant’s pre-trial motion for a severance of counts with reference to the resisting arrest count on which the defendant was ultimately acquitted. Sol…
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
- Correll v. State, 523 So. 2d 562 (Fla. 1988)
- State v. McGRIFF, 537 So. 2d 107 (Fla. 1989)
- Flowers v. State, 559 So. 2d 289 (Fla. 4th DCA 1990)
- Roberts v. State, 559 So. 2d 289 (Fla. 2d DCA 1990)
- Scott v. State, 446 So. 2d 261 (Fla. 2d DCA 1984)