MERCED ROSADO, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that the admission of a witness's prior consistent statement was harmless error and that the sentencing judge did not err in understanding the grounds for departure.
Appellant, a correctional officer, was accused of fondling a prisoner. A witness wrote a letter describing the incident, which the defense argued was …
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HARRIS, J.
We agree with appellant that the letter written by a witness who claimed to have seen appellant, a correctional officer, fondle a feinale prisoner was inadmissible as a prior consistent statement because it was written after that witness had a motive to fabricate. However, the question here is whether the letter could have had an influence on the outcome of the trial. We find harmless error. The witness told the chaplain about viewing appellant molesting the prisoner and was told to write down what he had seen. Unquestionably, this disclosure to the chaplain took place after the witness had been removed as trustee in the TV monitor room, near where the incident was testified to have taken place, because of appellant’s complaint that the witness had been moving around in the jail without permission. However, the statement given to the chaplain and the written account of it by the witness predates the time the victim, who had in the meantime been released from jail, came forward and described the incident exactly as described by the witness. We find beyond a reasonable doubt that the outcome of the trial would not have changed even had the letter not been introduced into evidence. At most, it was cumulative of the testimony given at trial.
Appellant’s second point is that the court erred in his sentence because it believed that it could not depart based on a non-enumerated reason. Actually, the court said that he did not believe that the lack of a prior record was a valid reason for departure. We find no error in the statement that the sentencing judge did not view the lack of a record as justification for departure. There is no indication at all that the judge would have departed for this reason had he thought it legal.
AFFIRMED.
THOMPSON, C.J., and SHARP, W., J., concur.
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Gardiner S. Somervell v. State, 883 So. 2d 836 (Fla. 5th DCA 2004)…t, of course, be factored into the harmless error calculus. See Torres-Arboledo v. State, 524 So. 2d 403 (Fla.), cert. denied, 488 U.S. 901, 109 S.Ct. 250, 102 L.Ed.2d 239 (1988); Ivory v. State, 821 So. 2d 1258 (Fla. 4th DCA 2002); Rosado v. State, 785 So. 2d 751 (Fla. 5th DCA 2001). Another consideration entering into our harmless error analysis is that Mr. Somer-vell made certain pretrial admissions reflecting that while he did attempt to commit a lewd and lascivious act on D.Z., he was prevented from doi…
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McKEEHAN v. State, 838 So. 2d 1257 (Fla. 5th DCA 2003)…that would constitute harmless error. See, e.g., Torres-Arboledo v. State, 524 So. 2d 403 (Fla.), cert. denied, 488 U.S. 901, 109 S.Ct. 250, 102 L.Ed.2d 239 (1988) (same); Ivory v. State, 821 So. 2d 1258 (Fla. 4th DCA 2002) (same); Rosado v. State, 785 So. 2d 751 (Fla. 5th DCA 2001) (same) (each holding that where erroneously admitted evidence tracks evidence which was properly admitted, the error is harmless). In the present case, however, the jury’s inquiry of the court relating, first, to the absence of…