JAMES CHARLES MCCLAIN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE

Fla. 2d DCA | 1978-02-22
No. 76-2055
BOARDMAN, C. J., and OTT, J., concur.
356 So. 2d 1256 Florida District Court of Appeal, Second District (1978) Positive Treatment
Cited by 35 cases

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Synopsis

McCLain challenges his enhanced sentence as an habitual felony offender under Florida law, arguing the evidence was not presented with proper confrontation rights and specific findings were not made. The court affirms the sentence but remands for resentencing to correct defects in the sentencing order.


Holding

The enhanced sentence was properly imposed because McCLain failed to object to the rap sheet evidence, making hearsay objections waived, and the conclusory findings tracking statutory language were sufficiently supported by the record. However, the sentence itself was defective and required remand for resentencing to correct procedural defects.


Headnotes

[1] Hearsay evidence is admissible in the absence of an objection.

[2] A defendant's failure to object to the consideration of evidence presented through the reading of a "rap sheet" waives the right to confront and cross-examine the evidenc…

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Key Quotes

“even hearsay evidence is admissible in the absence of objection”

Establishes that McCLain's failure to object to the rap sheet evidence waives any hearsay challenge

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Facts & Procedural History

McCLain was convicted of burglary and sentenced immediately after the jury verdict. The judge reviewed McCLain's prior criminal record ('rap sheet') s…

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Opinion of the Court
GRIMES, Judge.

GRIMES, Judge.

This appeal involves the procedure which was followed in imposing an extended sentence upon the appellant as an habitual felony offender under Section 775.084, Florida Statutes (1975).

The appellant was convicted of burglary. He was sentenced immediately following the rendition of the jury verdict. The judge first read into the record the details from appellant’s “rap sheet.” The judge then observed that the appellant had been given the prior written notice that he would be treated as an habitual felony offender which is required under the statute. The judge determined that the appellant had been convicted of a felony within the last five years which had not been set aside so that he fell within the statutory definition of an habitual felony offender and found that enhanced sentencing of the appellant was necessary for the protection of the public. Appellant’s counsel waived the necessity of a presentence investigation report. The judge asked if there was any reason why sentence should not be pro nounced and received a negative response from appellant’s counsel. The judge then sentenced the appellant to an extended sentence prescribed by the statute. At this point-appellant’s counsel stated that he felt the sentence was illegal because it exceeded the maximum allowed by law. The court noted that he could appeal, and he has. However, since the sentence was within the statutory limits, his appeal has centered on other points.

The appellant first argues that the evidence upon which his enhanced sentence was based was not presented in open court with full rights of confrontation and cross-examination as specified by Section 775.-084(3)(c). But unlike Harris v. State, 352 So. 2d 1264 (Fla. 2d DCA 1977), appellant made no objection to the consideration of the evidence presented through the reading of the “rap sheet.” No doubt, the recitation of convictions constituted hearsay, but even hearsay evidence is admissible in the absence of objection. Western Union Telegraph Co. v. Merritt, 55 Fla. 462, 46 So. 1024 (1908); see Annot., 79 A.L.R.2d 890 (1961). We see no purpose to be served in requiring the state to prove in the traditional way the convictions contained in a defendant’s “rap sheet” when no objection has been raised and the truth of the recitation has not been denied.

The appellant further argues that the judge erred in failing to make specific findings of the basis upon which the enhanced sentence was given. Under Section 775.084(3), if the defendant is found to be an habitual felony offender, the court must still conclude that it is necessary for the protection of the public before he can impose an extended term. With respect to findings, Section 775.084(3)(d) states:

(d) Each of the findings required as the basis for such sentence shall be found to exist by a preponderance of the evidence and shall be appealable to the extent normally applicable to similar findings.

In Chukes v. State, 334 So. 2d 289 (Fla. 4th DCA 1976), our sister court held that in order to impose an enhanced sentence under Section 775.084, the judge should make the necessary findings of fact required by the statute which must be supported by the record.

Turning to the instant case, we note that the judge made conclusionary findings by tracking the statutory language. It would have been helpful if he had outlined specific reasons for concluding that the sentencing of the appellant to an extended term was necessary for the protection of the public. However, the record in this case amply supports the ultimate conclusion, because the evidence concerning appellant’s prior criminal record reflects that he has been engaged in a lifetime of crime. Since the findings required by the statute are fully supported in this record, the judge was at liberty to impose the extended sentence.

The judgment and sentence are affirmed, but the case is remanded for resentencing of appellant. The present sentence does not specifically set forth the period of credit time to be allowed as required by Section 921.161(1), Florida Statutes (1975). Smith v. State, 310 So. 2d 770 (Fla. 2d DCA 1975). Moreover, the phrase “at hard labor” in the sentence is improper because no existing state statute provides for imprisonment at hard labor as a sentence for any offense. Speller v. State, 305 So. 2d 231 (Fla. 2d DCA 1974). Appellant need not be present at resentencing.

BOARDMAN, C. J., and OTT, J., concur.


Cases With Similar Vibessemantic neighbors from the corpus


Citator

Cited By (18 total)

  • Fredford James Eutsey v. State, 383 So. 2d 219 (Fla. 1980)
    …as given full opportunity to contest any part of its contents. He did not dispute any particular information contained in the report, however, and only made a general objection to its use in this type of sentencing proceedings. See McClain v. State, 356 So. 2d 1256 (Fla. 2d DCA 1978). Eutsey additionally maintains that he was denied due process because the findings of fact of the trial court are inadequate to make meaningful his appeal. Section 775.084(3)(d) requires that the trial court make findings of fact…
  • Ulysses Adams, Jr. v. State, 376 So. 2d 47 (Fla. 1st DCA 1979)
    …ention. See Specht v. Patterson . . Grimmett v. State, 357 So. 2d 461 (Fla. 2d DCA 1978), following Chukes “insofar as it requires all evidence relied upon by the court to justify an enhanced sentence to be produced in open court”; McClain v. State, 356 So. 2d 1256 (Fla. 2d DCA 1978), holding that defendant waived any right he had of confrontation and cross-examination by making no objection to the sentencing court’s exclusive reliance on a “rap sheet”; and King v. State, 369 So. 2d 1031 (Fla. 4th DCA 1979), s…
  • Johnson v. State, 371 So. 2d 556 (Fla. 2d DCA 1979)
    …Section 775.084, Florida Statutes, in that it requires specific justification and reasons for imposition of the sentence. See Fry v. State, 359 So. 2d 584 (Fla.2d DCA 1978) (evidence to justify enhanced sentence must be specified); McClain v. State, 356 So. 2d 1256 (Fla.2d DCA 1978) (record must support trial court’s conclusion that enhanced sentence is necessary). Finally, it should be emphasized that the statute clearly states that the criteria to be considered and the guidelines to be followed are to be de…

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