TIMOTHY SEAN BRATCHER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Timothy Bratcher was convicted of cocaine sale and possession and sentenced as a habitual felony offender to 25 years imprisonment. The Florida appellate court reversed and remanded for a new trial, finding that the trial court committed multiple evidentiary errors and improperly based the habitual offender sentencing on the defendant's alleged perjury at trial.
The trial court erred on all three issues. Defense witnesses may not be questioned about unrelated pending charges; evidence of a crack pipe found on a witness is insufficient to prove cocaine use on the date of the transaction; and a defendant's perjury committed during trial is not a proper sentencing factor for a habitual offender enhancement.
[1] A defense witness may not be questioned about pending charges unrelated to the case being tried.
[2] Evidence of a defense witness's unrelated drug use is inadmissible if it does not directly prove drug use on the day of the incident or demonstrate impairment of memory d…
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Join FLexlaw to unlock all legal intelligence“a defense witness may not be questioned on pending charges unrelated to the case being tried”
Establishes the rule against cross-examining defense witnesses about unrelated indictments
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Join FLexlaw to unlock all legal intelligenceBratcher was charged with and convicted of sale and possession of cocaine. The state's sentencing report documented eight or more felonies within less…
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COBB, J.
The defendant/appellant in this appeal, Timothy Bratcher, was charged and convicted of the sale and possession of cocaine.
The state’s sentencing report summarized Bratcher’s known criminal activity indicating eight or more felonies in the span of less than nine years as well as five prior misdemeanor convictions. The trial court found that Bratcher qualified as a habitual felony offender based on the statutory criteria of section 775.0784(l)(a), Florida Statutes (1997). As to Count I, sale of cocaine, Bratcher was sentenced to 25 years incarceration with 208 days credit for time served. As to Count II, possession of cocaine, Bratcher was given 16 months with 208 days credit concurrent to the sentence in Count I.
On appeal, Bratcher initially contends that the trial court erred in allowing the state, over objection, to ask a defense witness whether he was under federal indictment for trafficking in cocaine in an unrelated case. While the witness pled the Fifth Amendment and did not answer the question, it is clear that a defense witness may not be questioned on pending charges unrelated to the case being tried. Fulton v. State, 335 So. 2d 280 (Fla.1976); Stevens v. State, 693 So. 2d 1052 (Fla. 4th DCA1997).
In addition, during the trial the state asked another defense witness whether he used cocaine. At first the witness stated that it was none of the state’s concern but then was instructed to answer the question. The witness then answered “no.” The arresting officer was then called to rebut the defense witness in an apparent attempt to demonstrate that the defense witness did not have a good memory of what happened. The arresting officer testified that he discovered a crack pipe on the defense witness. An objection was made to this testimony since it was irrelevant to prove that the defense wit ness had been using drugs at the time of the transaction. This objection was overruled, however. We find that the trial court erred in considering and allowing this evidence since it was not direct evidence of the defense witness’ use of cocaine on the day of the incident and does not indicate that the defense witness’ mind was impaired because of drug use. Green v. State, 688 So. 2d 301, 305 (Fla.1996); Edwards v. State, 548 So. 2d 656, 658 (Fla.1989). See also Johnson v. State, 565 So. 2d 879, 880 (Fla. 5th DCA 1990); Richardson v. State, 561 So. 2d 18 (Fla. 5th DCA 1990).
Finally, Bratcher contends that the lower court habitualized him because of its belief that Bratcher had lied on the stand and the habitual offender sentence was the result of this perjury. Indeed, the trial court expressly indicated that Bratcher was being punished for lying under oath. Florida law holds that a defendant’s perjury committed while under oath during trial is not a proper sentencing factor. City of Daytona Beach v. Del Percio, 476 So. 2d 197, 205 (Fla.1985).
Accordingly, the judgment and sentence are reversed and the cause remanded for a new trial.
REVERSED AND REMANDED.
GOSHORN and GRIFFIN, JJ., concur.
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Josephs v. State, 86 So. 3d 1270 (Fla. 4th DCA 2012)…ing hearing, the trial court stated, “When you did testify during defense of this case, you blatantly lied.” “Florida law holds that a defendant’s perjury committed while under oath during trial is not a proper sentencing factor.” Bratcher v. State, 743 So. 2d 112, 114 (Fla. 5th DCA 1999). The trial court committed fundamental error in relying on the defendant’s untruthfulness in imposing his sentence under Smith and Bratcher. The trial court further erred in ordering the defendant to pay public defender fee…
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Ward v. State, 152 So. 3d 679 (Fla. 4th DCA 2014)…ental error for a sentencing judge to take into consideration a defendant’s truthfulness while testifying: See Josephs v. State, 86 So. 3d 1270, 1272 (Fla. 4th DCA 2012); Walden v. State, 123 So. 3d 1164, 1167 (Fla. 4th DCA 2013); Bratcher v. State, 743 So. 2d 112, 114 (Fla. 5th DCA 1999). The Supreme Court explained the rationale for this rule in City of Daytona Beach v. Del Percio: Conflicting evidence inheres in most trials, and to allow imposition of a harsher sentence merely because the trial judge [*68…
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Maxime Cherilus v. State, 199 So. 3d 392 (Fla. 4th DCA 2016)…sso v. State, 2 So. 3d 362, 364 (Fla. 4th DCA 2008). “Florida law holds that a defendant’s perjury committed while under oath is not a proper sentencing factor.” Josephs v. State, 86 So. 3d 1270, 1272 (Fla. 4th DCA 2012) (quoting Bratcher v. State, 743 So. 2d 112, 114 (Fla. 5th DCA 1999)). “A court may not rely on a defendant’s lack of truthfulness in imposing sentence because it ‘would create a catch-22 — the defendant may not be punished for his exercise of the right to trial but may be punished for his la…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Fulton v. State, 335 So. 2d 280 (Fla. 1976)
- City OF Daytona Beach v. Del Percio, 476 So. 2d 197 (Fla. 1985)
- Derinda Edwards v. State, 548 So. 2d 656 (Fla. 1989)
- Richardson v. State, 561 So. 2d 18 (Fla. 5th DCA 1990)
- Green v. State, 688 So. 2d 301 (Fla. 1996)
- Ulysses Johnson v. State, 565 So. 2d 879 (Fla. 5th DCA 1990)
- Stevens v. State, 693 So. 2d 1052 (Fla. 4th DCA 1997)