In TASKER v. STATE, No. SC09-1281 (Fla. Nov. 10, 2010), the Court held that a claim of scoresheet error pertaining to victim injury points that are included on the scoresheet filed in the initial sentencing proceeding in which the defendant is placed on probation may be raised for the first time in a motion to correct sentencing error pursuant to Fla. R. Crim. P. 3.800(b)(2) motion during an appeal from revocation of probation.
In RIGGINS v. STATE, No. 2D09-4886 (Fla. 2d DCA Nov. 10, 2010) the vehicle that the Defendant was driving was stopped for what appeared to be an expired temporary tag. The stopping officer determined that the Defendant's driver's license was suspended and that the car he was driving was not properly registered. The Defendant was convicted, inter alia, of operating an unregistered vehicle and unlawful use of a temporary tag.
At trial, the only evidence offered to prove that the vehicle the Defendant was driving was not properly registered in Florida was the officer's testimony that he had run the VIN of the Defendant's car through the FCIC/NCIC database on his in-car computer and had determined from the information provided by that database that the car "wasn't registered properly." The Defendant objected to that testimony, arguing that the officer's testimony as to what the FCIC/NCIC database "said"
was hearsay. In response, the State argued that the testimony fell within the hearsay exception for either absence of an entry in public records or absence of an entry from business records. The trial court admitted the evidence.
The DCA held that to be error for two reasons. First the State did not offer into evidence either a certification in accord with § 90.902 Florida Statutes or testimony from someone with knowledge that a diligent search failed to disclose any record, report, statement, or data compilation or entry. To admit evidence under § 90.902, it must be shown that the records were kept in accordance with § 90.803(6) Florida Statutes and in such a manner that the fact would have been recorded if it had occurred. It is necessary to call a witness to testify to the required foundation. Here, the State called no witness who could establish this required foundation. Second the testimony did not fall into the exception for absence of an entry from business records. The State could have obtained a certification called a witness to testify that there was no record of a proper registration of the Defendant's car on the date in question. The officer's testimony that he accessed the FCIC/NCIC database and did not find any registration for the car, standing alone, was hearsay when offered to prove that the car was not actually registered, and the testimony does not fall into any exception to the hearsay rule.
To prove the misdemeanor offense of unlawful use of a temporary tag, the State was required to prove both the actual expiration date of the temporary tag and that the tag had been expired more than seven days on the date of the traffic stop. See § 320.131(3) Fla. Stat. (2008).
Here, the officer testified that the temporary tag "showed" an expiration date that was more than seven days prior to the date of the stop. The Defendant objected to the officer's testimony as to the expiration date written on the tag on hearsay grounds. The trial court overruled the objection.
The DCA held that the definition of hearsay in § 90.801 Florida Statutes includes written assertions that are offered in evidence to prove the truth of the matter asserted. Thus, the unverified writing of a third person, like the ordinary speech of a third person, is hearsay.
Here the date written on the temporary tag was an out-of-court written assertion from an unknown person regarding the date the temporary tag was to expire. The officer's testimony concerning that alleged date was testimony repeating that out-of-court statement in an effort to prove the truth of the matter asserted, i.e., that the date he saw written on the temporary tag was, in fact, its expiration date. Thus, the testimony concerning the expiration date was hearsay that does not fall within any of the recognized hearsay exceptions, and it should have been excluded.
In BASSALLO v. STATE, No. 4D09-5068 (Fla. 4th DCA Nov. 10, 2010), the court held that fundamental error occurred when the trial court gave a standard jury instruction on self defense where the Defendant in an aggravated assault trial claimed the defense of self defense. The standard jury instructions on self-defense - justifiable use of deadly and non-deadly force - provide: "It is a defense to the offense with which (defendant) is charged if the [death of] [injury to] (victim) resulted from the justifiable use of force (likely) (not likely) to cause death or great bodily harm." Fla. Std. Jury Instr. (Crim.) 3.6(f) and (g). Here the sole defense was that the Defendant had brandished an object, arguably a weapon, in self defense. Therefore the inclusion of the word "injury" did not accurately and adequately state the law, because the Defendant was charged with aggravated assault, for which injury is not an element. No evidence of any injury to the victim was introduced. Therefore it was fundamental error to give an inaccurate and misleading instruction negating the sole theory of the defense.
Slip opinion at 6-7.
In McMAHON v. STATE, No. 4D09-1965 (Fla. 4th DCA Nov. 10, 2010), the DCA held that a sentencing order imposing a lawful sentence is not appealable by the State, even where the trial court improperly initiated a plea discussion. The DCA held that a trial court's initiation of plea discussions does not render an otherwise legal sentence "illegal" for purposes of an appeal by the State under Fla. R. App. P. 9.140(c) or §
924.07 Florida Statutes (2009). The DCA noted conflict with State v.
Chaves-Mendez, 809 So. 2d 910, 910-11 (Fla. 5th DCA 2002).
