Diaz v. State
2013 Fla. App. LEXIS 1999
Fla. Dist. Ct. App.2013Background
- Diaz challenged judgment for cannabis trafficking, paraphernalia, felon-in-possession, and obstructing an officer; booking report challenged.
- The trial court sentenced Diaz to 30 years despite DOC minimums of 3 to 10 years.
- Court found Diaz lied on the stand about living at the grow house; court stated aggravating factors outweighed mitigating factors.
- Appellate court held that sentencing cannot be based on truthfulness of testimony.
- Remand for resen-tencing before a different judge was ordered; judgment affirmed in part, sentence vacated and remanded with directions.
- Concurrence discussed two evidentiary issues as harmless error.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| May a sentence be based on the defendant's alleged truthfulness? | Diaz argues truthfulness cannot drive sentencing | State argues leeway allows use of various information, but not perjury | Remand for resen-tencing before a different judge |
| Were the challenged evidentiary rulings on hearsay harmless errors? | Admission of hearsay and double hearsay was improper | Errors, if any, are harmless | Harmless errors; no reversal on those grounds |
Key Cases Cited
- Smith v. State, 62 So.3d 698 (Fla. 2d DCA 2011) (cannot base sentence on defendant's testimony)
- Hannum v. State, 13 So.3d 132 (Fla. 2d DCA 2009) (perjury not a protected right; sentencing leeway exists)
- Brown v. State, 27 So.3d 181 (Fla. 2d DCA 2010) (acknowledges sentencing leeway but cautions against relying on innocence assertions)
- Bracero v. State, 10 So.3d 664 (Fla. 2d DCA 2009) (recognizes wide range of information in sentencing)
- Postell v. State, 398 So.2d 851 (Fla. 3d DCA 1981) (notes limits on admissibility of out-of-court statements)
- Roman v. State, 937 So.2d 235 (Fla. 3d DCA 2006) (hearsay by non-testifying witness can defeat confrontation)
- Love v. State, 971 So.2d 280 (Fla. 4th DCA 2008) (hearsay within hearsay foundation requirements)
- Twilegar v. State, 42 So.3d 177 (Fla. 2010) (business records foundation permissible without calling preparer)
- Yisrael v. State, 993 So.2d 952 (Fla. 2008) (business records exception framework applied)