LARRY BATEMAN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that the trial court did not err in its discovery hearing and that the habitual offender sentence was valid. The judgment and sentence are affirmed.
[1] A trial court's hearing on a discovery violation is adequate when the state did not intend to use the evidence, the defense was aware of the evidence's existence and iden…
[2] A discovery violation does not occur when the state's discovery response advises the defense of the existence of photographs and there is no contention of willful miscond…
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Join FLexlaw to unlock all legal intelligenceAppellant was convicted of sale of cocaine. He argued the state committed a discovery violation by not providing a photograph and that his habitual of…
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STONE, Judge.
We affirm appellant’s conviction for sale of cocaine, and his sentence as a habitual offender. Appellant first asserts that the trial court erred by conducting an inadequate hearing on his disclosure that the state had not furnished a copy of a photograph to the defense. The photograph showed a woman standing near the defendant at the time of the sale to an undercover officer. Appellant argues that this constitutes a discovery violation and deprived him of due process. See Richardson v. State, 246 So. 2d 771 (Fla.1971); Raffone v. State, 483 So. 2d 761 (Fla. 4th DCA), dismissed, 491 So. 2d 281 (1986). See also Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).
However, the record reflects no intention or attempt by the state to introduce or use the photograph. Further, the defendant knew pictures were taken, knew the identity of the woman, and never requested copies of the photographs. The state’s discovery response did advise the defense that there were photographs. There is no contention of willful misconduct by the state and there is no indication that the content of the picture was exculpatory. The hearing conducted was adequate, and the record reveals no abuse of discretion.
Appellant also asserts that his sentence as a habitual offender is an invalid departure from the guidelines. See Winters v. State, 522 So. 2d 816 (Fla.1988); Whitehead v. State, 498 So. 2d 863 (Fla.1986). However, a habitual offender sentence in excess of the guidelines, even in the absence of stated reasons for departure, is now valid. The amendment to section 775.084(4)(e), Florida Statutes, effective October 1988, supersedes Whitehead v. State. This statute removes habitual offender sentences from the sentencing guidelines. See Owens v. State, 560 So. 2d 1260 (Fla. 1st DCA 1990); State v. Davis, 559 So. 2d 1279 (Fla. 2d DCA 1990); King v. State, 557 So. 2d 899 (Fla. 5th DCA), rev. denied, 564 So. 2d 1086 (1990). Therefore, the judgment and sentence are affirmed.
ANSTEAD and GARRETT, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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State v. Matthews, 891 So. 2d 479 (Fla. 2004)…that offense is removed from sentencing guide [*490] lines consideration); Holley v. State, 577 So. 2d 624, 625 (Fla. 1st DCA 1991) (“[H]a-bitual offender sentencing is by statute exempted from sentencing guidelines procedures.”); Bateman v. State, 566 So. 2d 358, 359 (Fla. 4th DCA 1990) (“[S]ection 775.084(4)(e), Florida Statutes, effective October 1988, ... removes habitual offender sentences from the sentencing guidelines.”). In determining whether Tripp credit should apply to habitual offender sentences…
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State v. Ransom Louis Collins, 985 So. 2d 985 (Fla. 2008)…(h), Fla. Stat. (2001) (“A sentence imposed under this section is not subject to s. 921.002.”). Habitual offender sentencing is now separate from both the sentencing guidelines and sentencing under the Criminal Punishment Code. See Bateman v. State, 566 So. 2d 358, 359 (Fla. 4th DCA 1990) (recognizing that the amendment to section 775.084 superseded Whitehead and “a habitual offender sentence in excess of the guidelines, even [*992] in the absence of stated reasons for departure, is now valid”); Owens v. Stat…
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Pender v. State, 700 So. 2d 664 (Fla. 1997)…ver introduced the colpo-scope photograph at trial and the defendants knew of the existence of the photo prior to trial and specifically requested it in Dr. To-karski’s subpoena.3 Finally, the State asserts that as the court did in Bateman v. State, 566 So. 2d 358, 359 (Fla. 4th DCA 1990), this Court should find that the record [*667] in the instant case reveals that the trial court did not abuse its discretion in finding that no discovery violation occurred and, consequently, that a Richardson hearing was no…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Brady v. Maryland, 373 U.S. 83 (U.S. 1963)
- Richardson v. State, 246 So. 2d 771 (Fla. 1971)
- Whitehead v. State, 498 So. 2d 863 (Fla. 1986)
- Caracciolo v. State, 557 So. 2d 899 (Fla. 4th DCA 1990)
- Winters v. State, 522 So. 2d 816 (Fla. 1988)
- Raffone v. State, 483 So. 2d 761 (Fla. 4th DCA 1986)
- Owens v. State, 560 So. 2d 1260 (Fla. 1st DCA 1990)
- State v. Davis, 559 So. 2d 1279 (Fla. 2d DCA 1990)