JERRY L. KULICK, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Kulick appealed his conviction and sentence for two counts of armed robbery. The court affirmed his convictions but reversed and remanded for resentencing because the trial court erroneously believed sentencing as a habitual felony offender was mandatory rather than permissive under Florida law.
The court reversed the sentence and remanded for resentencing because Burdick v. State established that habitual felony offender sentencing is permissive, not mandatory. The court affirmed the conviction, holding that while tattoo displays are non-testimonial, proper foundation must be established through witness testimony before the trial, not during closing argument.
[1] Sentencing under Florida Statutes section 775.084(4)(a)(1) and (b)(1) is permissive, not mandatory.
[2] A defendant's display of tattoos or scars is considered nontestimonial evidence.
Previewing 2 of 4 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“It appears from the record that the trial court acted with the belief that sentencing under sections 775.084(4)(a)(l) and (b)(1), Florida Statutes (1991), was mandatory rather than permissive.”
Establishes the trial court's erroneous legal belief regarding sentencing discretion
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Join FLexlaw to unlock all legal intelligenceKulick was convicted of two counts of robbery with a weapon and sentenced as a habitual felony offender. At trial, Kulick's attorney attempted to have…
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FRANK, Acting Chief Judge.
Jerry L. Kulick has appealed from his conviction and sentence for two counts of robbery with a weapon, raising several issues, only one of which has merit. Kulick was sentenced as a habitual felony offender. It appears from the record that ;he trial court acted with the belief that sentencing under sections 775.084(4)(a)(l) and (b)(1), Florida Statutes (1991), was mandatory rather than permissive. Following Kulick’s sentencing the supreme court rendered its opinion in Burdick v. State, 594 So. 2d 267 (Fla.1992), holding that sentencing under those statutes is permissive. Accordingly, we reverse the sentence and remand for the judge to sentence him to an appropriate term in light of Burdick. See Walsingham v. State, 602 So. 2d 1297 (Fla. 1992).
In regard to his convictions, Kulick has raised one point that requires some discussion. He claims that the trial court erred when his attorney was prevented from having him stand up before the jury during closing argument to display his tattoos and the scar on his lip, none of which were mentioned by the eyewitnesses in their identifications. The trial court sustained the prosecutor’s objections, holding that such a display was testimonial and that the time for the defense to present testimony had passed. Kulick maintains that the trial court erred because the proposed demonstration was nontestimonial.
We agree with Kulick that a display of tattoos or scars does not subject the defendant to cross examination, and we recently reaffirmed that view in Petitt v. State, 612 So. 2d 1381 (Fla. 2d DCA 1992). In Petitt, however, unlike this case, the failure to allow the revelation was reversible because the defense attorney made an appropriate request to display his client’s tattoos but declined to do so only because the judge told him that Petitt would consequently be subject to cross examination. In Petitt we relied upon United States v. Bay, 762 F. 2d 1314 (9th Cir.1984), which discusses not only the nontestimonial nature of the exhibition but also the need for a foundation to be laid before evidence of tattoos or other body marks can be admitted. It is incumbent upon the defense to make a showing, through appropriate witnesses, that the tattoos were present at the time of the crime. In this case, because the defense attorney attempted such demonstration at a procedurally inappropriate time — during closing argument — without prior permission, he essentially attempted to offer evidence without a proper foundation. Had the foundation been laid and the display permitted, the attorney would have then been free to argue the point during closing. See Bay, 762 F. 2d at 1315-16. Although in Petitt we remanded for the taking of further foundational evidence, we find that remedy inappropriate in this case where the defense attorney essentially tried to sandbag the prosecution and offe*. evidence at a time reserved for argument.
Affirm convictions, reverse and remand for resentencing.
PATTERSON and BLUE, JJ., concur.
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Miller v. State, 667 So. 2d 1009 (Fla. 3d DCA 1996)…ffect that defendant had the tattoos on the date of the incidents charged in the information. This would have been an adequate predicate for the display defendant requested. Whittington v. State, 656 So. 2d 1346 (Fla. 1st DCA 1995); Kulick v. State, 614 So. 2d 672 (Fla. 2d DCA 1993); Pettit v. State, 612 So. 2d 1381 (Fla. 2d DCA 1992). On remand, if defendant establishes that he had the tattoos on the dates in question, the trial court should grant a new trial. Whittington; Pettit. Remanded for further pro…
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Fautino Rosario v. State, 689 So. 2d 1130 (Fla. 1st DCA 1997)…ng funny. The case law is clear, as the state concedes, that a display of scars is not testimonial in nature and does not subject a defendant to cross examination. See e.g. Whittington v. State, 656 So. 2d 1346 (Fla. 1st DCA 1995); Kulick v. State, 614 So. 2d 672 (Fla. 2d DCA 1993); Pettit v. State, 612 So. 2d 1381 (Fla. 2d DCA 1992). The state argues, however, and we agree, that the trial court’s erroneous ruling was harmless beyond a reasonable doubt. The drug purchase was face-to-face, and Officer Peterso…
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Ramirez v. State, 847 So. 2d 1147 (Fla. 3d DCA 2003)…the trial court reconsidered and concluded that the State’s objection had been well taken. “It is incumbent upon the defense to make a showing, through appropriate witnesses, that the tattoos were present at the time of the crime.” Kulick v. State, 614 So. 2d 672, 673 (Fla. 2d DCA 1993); see also Miller v. State, 667 So. 2d 1009 (Fla. 3d DCA 1996). Out of the presence of the jury, the court ruled that the State would be allowed to comment in closing argument regarding the absence of a predicate showing that…
Authorities Cited
- Burdick v. State, 594 So. 2d 267 (Fla. 1992)
- United States v. Thaeeb BAY, 748 F.2d 1344 (9th Cir. 1984)
- Pettit v. State, 612 So. 2d 1381 (Fla. 2d DCA 1992)
- Walsingham v. State, 602 So. 2d 1297 (Fla. 1992)