DONALD LLOYD ALLRED, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Donald Lloyd Allred appealed his aggravated battery conviction, challenging both the admission of evidence regarding prior acts of violence against women and the restitution order imposed at sentencing. The court affirmed the conviction but remanded for a proper restitution hearing due to discrepancies between the oral and written restitution orders.
The conviction was affirmed because Allred opened the door to impeachment evidence by testifying he had never hit any woman, and therefore the evidence of prior acts was properly admitted. The restitution condition was remanded because the discrepancy between the oral order and written order requires reversal, and the trial court must conduct a proper restitution hearing where the defendant can demonstrate his financial resources and needs.
[1] Evidence of collateral crimes is admissible to impeach a defendant's testimony if the defendant "opens the door" by asserting a character trait that the collateral crimes…
[2] A discrepancy between a trial court's oral pronouncement of restitution and its written order necessitates reversal and remand.
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“Impeachment evidence was properly admitted after Allred "opened the door" by testifying that he had never hit any woman.”
Establishes that the defendant's own testimony regarding lack of violent propensity allowed the state to present evidence of prior violent acts for impeachment purposes.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceAllred was convicted of aggravated battery; the victim suffered severe injuries requiring brain surgery. At trial, the state presented evidence that A…
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BENTON, Judge.
Donald Lloyd Allred appeals his conviction for aggravated battery. The victim suffered severe injuries and required brain surgery. We affirm the conviction and the order placing appellant on two years’ community control, to be followed by thirteen years on probation, together with all conditions of probation except the condition regarding restitution. We remand for further proceedings as to restitution.
Allred argues that his conviction should be reversed, because the jury heard evidence of collateral crimes that was not relevant to the offense for which he was tried. The state called witnesses who testified over objection that Allred hit his first wife and a former girl friend. If appellant had not put his character in issue, this testimony would have been improper. Heuring v. State, 513 So. 2d 122 (Fla.1987); Walker v. State, 642 So. 2d 605 (Fla. 1st DCA 1994); Weitz v. State, 510 So. 2d 1060 (Fla. 4th DCA 1987) (reversing a conviction where testimony of collateral acts did not impeach the defendant’s testimony).
Here, however, appellant claimed a lack of violent propensity, asserting he would not strike a woman. See Fletcher v. State, 619 So. 2d 333 (Fla. 1st DCA 1993), review denied, 629 So. 2d 132 (allowing impeachment on a collateral matter without prior Williams rule notice).
Impeachment evidence was properly admitted after Allred “opened the door” by testifying that he had never hit any woman. § 90.-404(2)(b), Fla.Stat. Allred attacks the restitution condition on grounds the trial court did not hold a restitution hearing. But, at the sentencing hearing, the state presented bills aggregating $40,631.21 for medical expenses the victim had incurred, an amount the defense did not dispute.1 The trial judge orally ordered restitution in the amount of $39,691.21, to be paid in installments, and directed appellant and the probation officer to try to agree on the amount of monthly payments.2 The writ ten order entered a week after the oral pronouncement made no mention of monthly installments, however, and specified a different total: $41,153.96.
The discrepancy between written order and oral pronouncement requires reversal. See Sumter v. State, 570 So. 2d 1039, 1041 (Fla. 1st DCA 1990), review dismissed, 583 So. 2d 1037 (Fla.1991).
As the learned trial judge recognized, the judicial duty to determine the defendant’s ability to pay restitution and to set the amount of monthly installment payments may not be delegated to the probation officer, where a dispute requires resolution. Smith v. State, 613 So. 2d 1325 (Fla. 1st DCA 1992), review dismissed, 618 So. 2d 210 (Fla.1993); Ashe v. State, 582 So. 2d 759 (Fla. 1st DCA 1991).
On remand, if the parties cannot agree on amounts, a restitution hearing will be necessary. At any such hearing, Allred should not be precluded from demonstrating his present and future financial resources and needs in accordance with section 775.089(7), Florida Statutes. See Hawthorne v. State, 558 So. 2d 156 (Fla. 1st DCA 1990), quashed on other grounds, 573 So. 2d 330 (Fla.1991) (the burden of proving the defendant’s financial cir-. cumstances rests on the defendant).
JOANOS and WOLF, JJ., concur. . The trial judge asked, "Is there any dispute about the amount of restitution?” The assistant public defender answered, "No. As long as in good faith these are the medical records.”
. "Now, this restitution is going to be directed as determined by the Probation Officer. If you and your Probation Officer are unable to agree on a restitution figure then I will set the amount that’s going to be paid every month.”
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Cited By (14 total)
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Bozeman v. State, 698 So. 2d 629 (Fla. 4th DCA 1997)…will not be misled. See Brown v. State, 579 So. 2d 898 (Fla. 4th DCA 1991); Dodson v. State, 356 So. 2d 878 (Fla. 3d DCA 1978); Hernandez v. State, 569 So. 2d 857 (Fla. 2d DCA 1990); Davis v. State, 216 So. 2d 87 (Fla. 2d DCA 1968); Allred v. State, 642 So. 2d 650 (Fla. 1st DCA 1994); Fletcher v. [*631] State, 619 So. 2d 333 (Fla. 1st DCA 1993). The “opening the door” concept is based on considerations of fairness and the truth-seeking function of a trial, where cross-examination reveals the whole story of a…
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Washington v. State, 737 So. 2d 1208 (Fla. 1st DCA 1999)…d 96 (Fla.1996) (in prosecution for first-degree murder, defendant’s denial during direct examination that he murdered victim “opened the door” for cross-examination or impeachment with evidence that linked defendant to the murder); Allred v. State, 642 So. 2d 650 (Fla. 1st DCA 1994) (in prosecution for aggravated battery, defendant’s claim of lack of violent propensity and his assertion that he would not strike a woman “opened the door” for admission of testimonial evidence that defendant had hit his first w…
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Mosley v. State, 739 So. 2d 672 (Fla. 4th DCA 1999)…will not be misled. See Brown v. State, 579 So. 2d 898 (Fla. 4th DCA 1991); Dodson v. State, 356 So. 2d 878 (Fla. 3d DCA 1978); Hernandez v. State, 569 So. 2d 857 (Fla. 2d DCA 1990); Davis v. State, 216 So. 2d 87 (Fla. 2d DCA 1968); Allred v. State, 642 So. 2d 650 (Fla. 1st DCA 1994); Fletcher v. State, 619 So. 2d 333 (Fla. 1st DCA 1993). The “opening the door” concept is based on considerations of fairness and the truth-seeking function of a trial, where cross-examination reveals the whole story of a transac…
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 (11 total)
- State v. Hawthorne, 573 So. 2d 330 (Fla. 1991)
- State v. Fundora, 513 So. 2d 122 (Fla. 1987)
- Frederick A.R. Heuring v. State, 513 So. 2d 122 (Fla. 1987)
- Ashe v. State, 582 So. 2d 759 (Fla. 1st DCA 1991)
- Sumter v. State, 570 So. 2d 1039 (Fla. 1st DCA 1990)
- Orrin T. Hunt v. Dep't of Prof'l Reg., 558 So. 2d 156 (Fla. 1st DCA 1990)
- Laudecio v. K-Site 500 Assocs. & Chicago Title Ins. Co., 619 So. 2d 333 (Fla. 3d DCA 1993)
- Fletcher v. State, 619 So. 2d 333 (Fla. 1st DCA 1993)
- Weitz v. State, 510 So. 2d 1060 (Fla. 4th DCA 1987)
- Shahjahan Smith v. State, 613 So. 2d 1325 (Fla. 1st DCA 1992)