WILEY LINYER HERNANDEZ, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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The court held that the trial court erred in enhancing the sentence based on an alleged breach of trust, but found no error in the admission of hearsay evidence or testimony of prior events.
Appellant was convicted of second degree murder based substantially on circumstantial evidence. The victim was the appellant's former wife.…
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PER CURIAM.
Following a jury trial, the appellant was convicted and adjudicated guilty of second degree murder. The victim was the former wife of the appellant and the conviction was based substantially on circumstantial evidence.
The appellant urges error in permitting hearsay evidence as an exception to the general rule, error in permitting testimony of prior events relative to the victim and the appellant which was a violation of Williams v. State, 438 So. 2d 152 (Fla. 3d DCA 1983), and lastly, that the trial court erred in enhancing the guideline sentence because of an alleged breach of trust on the part of the appellant, citing Davis v. State, 517 So. 2d 670 (Fla.1987).
We find no error in the first two points urged for reversal. State v. Jano, 524 So. 2d 660 (Fla.1988); Jano v. State, 510 So. 2d 615 (Fla. 4th DCA 1987), approved, 524 So. 2d 660 (Fla.1988); Outler v. State, 322 So. 2d 623 (Fla. 3d DCA 1975); see 1 C. Erhardt, Florida Evidence § 803.2, at 473-474 (2d ed. 1984); McCormick on Evidence § 297, at 856 (3rd ed. 1984). We do find error in the sentencing under the principles announced in Davis, and hereby set the sentencing aside and remand to the trial court for sentencing within the guidelines.
Affirmed in part, reversed and remanded for resentencing.
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Ladd v. State, 564 So. 2d 587 (Fla. 2d DCA 1990)…nt to testify. We disagree. The trial court did not err in determining that no other testimony provided a predicate for that expert testimony. Defendant simply chose to testify in order to obtain the admission of that testimony. See Tullis v. State, 556 So. 2d 1165 (Fla. 3d DCA 1990). Also, the substantial part of her testimony about the murder, which she contends led to her conviction, was upon questioning by defense counsel. See Stanley v. State, 357 So. 2d 1031, 1034 (Fla. 3d DCA), cert. denied, 364 So. 2…
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Small v. State, 587 So. 2d 676 (Fla. 3d DCA 1991)…l witnesses in the case which, defendant asserts, affected the witness’ ability to observe, remember, and recount. We conclude that the trial court’s rulings were consistent with Edwards v. State, 548 So. 2d 656, 658 (Fla.1989), and Tullis v. State, 556 So. 2d 1165, 1166-67 (Fla. 3d DCA 1990). The convictions are therefore affirmed.…
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Trainor v. State, 768 So. 2d 1123 (Fla. 2d DCA 2000)…ld show that he suffered from a mental condition at the time of the incident or at the time of trial and that such condition affected his ability to observe, remember, and accurately recount the matters about which he testified. See Tullis v. State, 556 So. 2d 1165 (Fla. 3d DCA 1990); Gamble v. State, 492 So. 2d 1132 (Fla. 5th DCA 1986). Finally, as Trainor concedes, his trial attorney failed to object to any of the State’s comments that he now contends were improper. Therefore, this issue has not been proper…
Authorities Cited
- State v. Bret Edmund Jano, 524 So. 2d 660 (Fla. 1988)
- Davis v. State, 517 So. 2d 670 (Fla. 1987)
- Williams v. State, 438 So. 2d 152 (Fla. 3d DCA 1983)
- Cronacher v. Fla. Dep't OF Revenue, 510 So. 2d 615 (Fla. 3d DCA 1987)
- Outler v. State, 322 So. 2d 623 (Fla. 3d DCA 1975)