ALLANGSON BRUNSON, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Allangson Brunson appealed his convictions for armed burglary and sexual battery, challenging the admissibility of certain evidence and the sufficiency of evidence. The court affirmed his convictions but reversed his sentences, finding that the trial court improperly departed from sentencing guidelines based on invalid reasons.
The court affirmed the convictions, finding the victim's statement admissible as an excited utterance, the fingerprint expert's testimony properly admitted, and sufficient evidence of identity. However, the court reversed the sentences, holding that all three reasons given for departing from sentencing guidelines were invalid: prior criminal history and lack of remorse are categorically impermissible reasons, and psychological injury to the victim was not sufficiently established in the record.
[1] A victim's statement made shortly after a sexual battery may be admissible under the excited utterance exception to the hearsay rule.
[2] A trial court has discretion to limit voir dire examination of an expert witness.
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Join FLexlaw to unlock all legal intelligence“The statement was admissible under the excited utterance exception to the hearsay rule.”
Establishes the admissibility of the victim's statement made shortly after the rape.
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Join FLexlaw to unlock all legal intelligenceBrunson was convicted of armed burglary of an occupied structure and sexual battery with a weapon. The victim made a statement shortly after being rap…
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PER CURIAM.
The defendant Allangson Brunson appeals his convictions and sentences for armed burglary of an occupied structure and sexual battery with a weapon. He raises four points on appeal.
First, he claims the trial court erred in admitting a statement of the rape victim shortly after the victim was raped.
We disagree. The statement was admissible under the excited utterance exception to the hearsay rule. Appell v. State, 250 So. 2d 318 (Fla. 4th DCA), cert. denied, 257 So. 2d 257 (Fla.1971); § 90.803(1), Fla.Stat. (1985).
Second, he claims that the trial court committed reversible error in restricting the voir dire examination of a state fingerprint expert and in admitting his testimony.
We disagree. The limitation on the voir dire examination was plainly within the trial court’s discretion, and the testimony was admissible as relevant opinion testimony from a fully qualified fingerprint expert. Johnson v. State, 393 So. 2d 1069 (Fla.1980), cert. denied, 454 U.S. 882, 102 S.Ct. 364, 70 L.Ed.2d 191 (1981).
Third, he claims that the evidence was insufficient to support the verdict.
We disagree.
The testimony adduced below sufficiently establishes the identity of the defendant as the assailant in this case. See Clark v. State, 122 Fla. 310, 310-11, 165 So. 44, 45 (1936); McClendon v. State, 372 So. 2d 1161, 1162 (Fla. 1st DCA 1979); Yuanis v. State, 347 So. 2d 448, 448 (Fla. 3d DCA 1977); accord Carrasco v. State, 470 So. 2d 858, 860 (Fla. 1st DCA 1985).
The final point raised presents reversible error.
The trial court departed from the sentencing guidelines in this case and sentenced the defendant to two consecutive life sentences. Plainly, two of the reasons given by the trial court for departing from the guidelines were invalid reasons, regardless of any support in the record for same, to wit: (1) the defendant’s prior criminal history of assaultive behavior, see Hendrix v. State, 475 So. 2d 1218 (Fla.1985); Battles v. State, 482 So. 2d 540 (Fla. 3d DCA 1986); and (2) the defendant’s lack of remorse for having committed the offense for which he was sentenced. Hunt v. State, 468 So. 2d 1100 (Fla. 1st DCA 1985); Mischler v. State, 458 So. 2d 37 (Fla. 4th DCA 1984), approved, 488 So. 2d 523 (Fla.1986); Hubler v. State, 458 So. 2d 350 (Fla. 1st DCA 1984).
The third reason, psychological injury to the victim — although a valid reason for departing from the guidelines providing there is a proper showing in the record that the victim has, in fact, suffered a substantial psychological injury — was not a valid reason for depar ture in this case. This is so because there is an insufficient showing in the record that the victim in this case suffered a substantial psychological injury. Hankey v. State, 485 So. 2d 827 (Fla.1986).
All three reasons, then, given by the trial court for departing from the sentencing guidelines herein were insufficient to justify the said departure.
The judgments of conviction under review are affirmed; the sentences under review are reversed and the cause is remanded to the trial court for resentencing within the sentencing guidelines.
Affirmed in part; reversed in part.
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O'Hara v. State, 642 So. 2d 592 (Fla. 4th DCA 1994)…la. 3d DCA 1991); Pineda v. State, 571 So. 2d 105 (Fla. 3d DCA 1990); Gosha v. State, 534 So. 2d 912 (Fla. 3d DCA 1988); Williams v. State, 424 So. 2d 148 (Fla. 5th DCA 1982) with Valdez v. State, 585 So. 2d 479 (Fla. 3d DCA 1991); Brunson v. State, 492 So. 2d 1155 (Fla. 3d DCA 1986); Stano v. State, 473 So. 2d 1282 (Fla.1985). Under the facts in this case, the trial court abused its discretion in limiting voir dire questioning to less than two minutes per prospective juror. The foregoing limitation of voir d…
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Carnegie v. State, 498 So. 2d 1020 (Fla. 2d DCA 1986)…nt showed no remorse whatsoever and the jury, by its verdict, implicitly found that he committed perjury on the witness stand. Lack of remorse is an improper reason for departure. Baker v. State, 493 So. 2d 515 (Fla. 1st DCA 1986); Brunson v. State, 492 So. 2d 1155 (Fla. 3d DCA 1986). Moreover, a departure from the guidelines cannot be predicated upon the court’s conclusion that the defendant “perjured” himself during his testimony. Sloan v. State, 472 So. 2d 488 (Fla.2d DCA 1985). (4) The victim sustained ex…
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Bailey v. State, 559 So. 2d 604 (Fla. 3d DCA 1990)…et assertion of the court, as to the type of trauma suffered by the victim. Without such evidence, that reason for departure is invalid. Harris v. State, 531 So. 2d 1349 (Fla.1988); Leon v. State, 498 So. 2d 680 (Fla. 3d DCA 1986); Brunson v. State, 492 So. 2d 1155 (Fla. 3d DCA 1986); Smith v. State, 526 So. 2d 1060 (Fla. 1st DCA 1988); Roseman v. State, 519 So. 2d 1129 (Fla. 5th DCA 1988); Salas v. State, 544 So. 2d 1040 (Fla. 4th DCA 1989). For these reasons, we affirm Bailey’s convictions for sexual batter…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited (17 total)
- Hendrix v. State, 475 So. 2d 1218 (Fla. 1985)
- State v. Mischler, 488 So. 2d 523 (Fla. 1986)
- Johnson v. Florida, 454 U.S. 882 (U.S. 1981)
- Reckner v. Foremost Ins. Co., 393 So. 2d 1069 (Fla. 1980)
- Hankey v. State, 485 So. 2d 827 (Fla. 1986)
- Mischler v. State, 458 So. 2d 37 (Fla. 4th DCA 1984)
- Hubler v. State, 458 So. 2d 350 (Fla. 1st DCA 1984)
- Hunt v. State, 468 So. 2d 1100 (Fla. 1st DCA 1985)
- Appell v. State, 250 So. 2d 318 (Fla. 4th DCA 1971)
- McCLENDON v. State, 372 So. 2d 1161 (Fla. 1st DCA 1979)