LARRY JAMES KING, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Larry James King was convicted of cocaine possession and sentenced as a habitual felony offender to four and one-half years in prison. The appellate court affirmed the conviction but vacated the sentence because hearsay evidence regarding King's prior release date was improperly admitted without proper foundation.
The hearsay evidence was improperly admitted because the state failed to comply with Section 90.803(6) of the Florida Evidence Code. The testifying officer was neither the custodian of the records nor otherwise qualified to establish the reliability of the computer printout. Without this evidence, the record is legally insufficient to support the habitual felony offender finding.
[1] A parole and probation officer's testimony regarding a defendant's release date from prison, based solely on a Department of Corrections computer printout, is inadmissibl…
[2] To overcome a hearsay objection to testimony regarding the contents of a business record, the witness must be the custodian of the record or otherwise qualified to testif…
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Join FLexlaw to unlock all legal intelligence“To overcome a hearsay objection to the officer's testimony, the state was obliged to comply with Section 90.803(6) of the Florida Evidence Code. The state failed to do so, because the officer was neither the "custodian" of the printout nor otherwise qualified to testify as to its method of preparation and reliability.”
Establishes the evidentiary requirement for business records exception and the state's failure to meet it
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Join FLexlaw to unlock all legal intelligenceKing was convicted of cocaine possession. At sentencing, the trial court found him to be a habitual felony offender based on six prior felony convicti…
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PER CURIAM.
Appellant, defendant below, was convicted of possession of cocaine and sentenced to four and one-half years in prison. He appeals both the conviction and the sentence. The arguments addressed to the conviction require neither reversal nor discussion. However, one of the arguments addressed to the sentence does have merit, and requires that we vacate the sentence and remand for further proceedings.
The trial court found appellant to be an habitual felony offender, and sentenced him as such. At the hearing held to determine whether appellant qualified as an habitual felony offender, the state established that appellant had previously been convicted of at least six felonies. However, all of the prior felony convictions had occurred more than five years before appellant had committed the offense for which he was being sentenced. Therefore, in an attempt to satisfy the requirements of Section 775.-084(l)(a)2., Florida Statutes (1989), the state presented evidence that “[t]he felony for which the defendant is to be sentenced was committed ... within 5 years of the defendant’s release ... from a prison sentence or other commitment imposed as a result of a prior conviction for a felony....”
The state’s evidence as to appellant’s release date for appellant’s last prior felony conviction consisted only of the testimony of a parole and probation officer, who testified that appellant had been released from prison on a date less than five years before the date on which appellant had committed the offense for which he was being sentenced. On cross-examination, however, it became apparent that the officer’s testimony was based entirely upon a Department of Corrections computer printout; that the officer was not the “custodian” of such records; and that he had no knowledge regarding the method of preparation or the reliability of the printout. Appellant’s counsel objected that the officer’s testimony regarding appellant’s release date was inadmissible hearsay.
However, the trial court overruled the objection. This was error. To overcome a hearsay objection to the officer’s testimony, the state was obliged to comply with Section 90.803(6) of the Florida Evidence Code. The state failed to do so, because the officer was neither the “custodian” of the printout nor otherwise qualified to testify as to its method of preparation and reliability.
Therefore, the trial court should have sustained the hearsay objection. See Cofield v. State, 474 So. 2d 849 (Fla. 1st DCA 1985); Pickrell v. State, 301 So. 2d 473 (Fla. 2d DCA 1974), cert. denied, 314 So. 2d 585 (Fla.1975). Without the improperly admitted testimony, the evidence is legally insufficient to support the trial court’s finding that appellant is an habitual felony offender.
Accordingly, we are compelled to vacate appellant’s sentence, and to remand to the trial court for resentencing. On remand, there is nothing to prevent the state from again seeking to establish that appellant is an habitual felony offender; or to prevent the trial court from again finding that appellant is an habitual felony offender, and sentencing him as such, assuming that the evidence is legally sufficient to support such a finding. See Doggett v. State, 584 So. 2d 116 (Fla. 1st DCA 1991).
CONVICTION AFFIRMED; SENTENCE VACATED; and REMANDED with directions.
ALLEN, KAHN and WEBSTER, JJ., concur.
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Citator
Cited By (14 total)
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Gray v. State, 910 So. 2d 867 (Fla. 1st DCA 2005)…n of the document, or other person authorized by statute to make a certification, must certify that the copy is correct and that the person has custody of the original.... The custodian’s signature must follow the statement”). Compare King v. State, 590 So. 2d 1032, 1033 (Fla. 1st DCA 1991) (holding probation officer’s testimony regarding defendant’s release date, based on an unauthenticated Department of Corrections computer printout, was inadmissible hearsay, and that “[wjithout the improperly admitted testi…
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Carter v. State, 951 So. 2d 939 (Fla. 4th DCA 2007)…onent of the evidence to lay a proper predicate. See Richardson v. State, 875 So. 2d 673, 676 (Fla. 1st DCA 2004) (citing Andrews v. State, 261 So. 2d 497 (Fla.1972); Neeley v. State, 883 So. 2d 861, 864 (Fla. 1st DCA 2004)); see also King v. State, 590 So. 2d 1032, 1033 (Fla. 1st DCA 1991) (finding the defendant’s hearsay objection sufficient where the state failed to satisfy the foundational requirements of section 90.803(6) for admission of a computer printout at sentencing). In Richardson, a defendant cha…
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Sinclair v. State, 853 So. 2d 551 (Fla. 1st DCA 2003)…oth of which were essential to the imposition of PRR sentences.2 In Sinclair I, we cited Boyd v. State, 776 So. 2d 317 (Fla. 4th DCA), review denied, 792 So. 2d 1213 (Fla.2001); Randall v. State, 613 So. 2d 93 (Fla. 1st DCA 1993); and King v. State, 590 So. 2d 1032 (Fla. 1st DCA 1991), as an aid to the state and trial court. Nevertheless, on remand, the state failed to cure these evi-dentiary errors in proof and the trial court again imposed PRR sentences based upon legally insufficient evidence. In reversing…
Previewing 3 of 14 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Stoddard Pickrell v. State, 301 So. 2d 473 (Fla. 2d DCA 1974)
- Cofield v. State, 474 So. 2d 849 (Fla. 1st DCA 1985)
- Doggett v. State, 584 So. 2d 116 (Fla. 1st DCA 1991)
- Caves v. State, 314 So. 2d 585 (Fla. 1975)
- Stoddard Pickrell v. State, 314 So. 2d 585 (Fla. 1975)