ROBERT LEROY SMITH, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Robert Leroy Smith appealed his convictions for robbery, aggravated battery, burglary, grand theft auto, and felony driving with suspended license. The court found two reversible errors: the trial court improperly reclassified an aggravated battery conviction as a first-degree felony and abused its discretion by denying a continuance to secure alibi witnesses.
The trial court erred in reclassifying the aggravated battery conviction to a first-degree felony under Florida Statutes section 775.087(l)(b) and imposing a thirty-year sentence. The trial court also abused its discretion by denying the motion for continuance, as Smith demonstrated due diligence, the witnesses could provide material alibi testimony, and their testimony would have required the jury to reassess the credibility of the eyewitness identification.
[1] A trial court errs in reclassifying a conviction to a higher degree felony and imposing a sentence based on that reclassification when the statute does not permit such re…
[2] A trial court abuses its discretion by denying a motion to continue a trial when the defendant demonstrates due diligence in securing alibi witnesses who can provide test…
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Join FLexlaw to unlock all legal intelligence“the trial court erred in reclassifying appellant's aggravated battery conviction to a first degree felony under section 775.087(l)(b), Florida Statutes (2001), and imposing a thirty-year sentence”
Establishes the first reversible error regarding improper felony reclassification and sentencing
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Join FLexlaw to unlock all legal intelligenceSmith was charged with multiple felonies stemming from a criminal episode in Gainesville, Florida on February 21, 2002, including robbery with a firea…
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PER CURIAM.
Robert Leroy Smith appeals his convictions and sentences for robbery with a firearm, aggravated battery with a firearm, burglary of an occupied conveyance committing an assault or battery and armed with a firearm, grand theft auto and felony driving while license suspended or revoked, all relating to a criminal episode that occurred in Gainesville, Florida on February 21, 2002. The State concedes that the trial court erred in reclassifying appellant’s aggravated battery conviction to a first degree felony under section 775.087(l)(b), Florida Statutes (2001), and imposing a thirty-year sentence. Cargle v. State, 829 So. 2d 366, 367 (Fla. 1st DCA 2002).
Further, we find that the trial court erred by denying appellant’s motion to continue the trial in order to secure the presence of two alibi witnesses. Appellant has shown that he exercised due diligence in attempting to serve these two witnesses; that these witnesses could allegedly supply alibi testimony that he was in Tallahassee the evening the offenses herein were committed; that, although the witnesses were avoiding service of a subpoena at the time of trial, on one occasion the witnesses had appeared in court and were willing to testify; and that, though there was eyewitness testimony against appellant, if these witnesses testified as expected, it would have necessitated the jury weighing whether the state’s witnesses were mistaken in their identification. See Robinson v. State, 561 So. 2d 419 (Fla. 1st DCA 1990); Beachum v. State, 547 So. 2d 288 (Fla. 1st DCA 1989), see also Geralds v. State, 674 So. 2d 96, 99 (Fla.1996)(setting forth four-part test to be employed in judging whether there has been palpable abuse of discretion in denying motion for continuance).
REVERSED and REMANDED for a new trial.
DAVIS, VAN NORTWICK and HAWKES, JJ., concur.
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Ostolaza v. State, 943 So. 2d 1001 (Fla. 2d DCA 2006)…ns: He is working; he is [*1004] dirty; his boss is going to fire him. Those kinds of reasons.” Other than Rivera’s failure to honor the subpoena, nothing in the record shows that he was either unavailable or unwilling to testify. Cf Smith v. State, 873 So. 2d 1289 (Fla. 1st DCA 2004) (finding abuse of discretion in trial court’s denial of continuance and noting “that, although the witnesses were avoiding service of a subpoena at the time of trial, on one occasion the witnesses had appeared in court and were w…
Authorities Cited
- Geralds v. State, 674 So. 2d 96 (Fla. 1996)
- Robinson v. State, 561 So. 2d 419 (Fla. 1st DCA 1990)
- Beachum v. State, 547 So. 2d 288 (Fla. 1st DCA 1989)
- Rico L. Cargle v. State, 829 So. 2d 366 (Fla. 1st DCA 2002)