Josephs v. State
2012 Fla. App. LEXIS 7296
| Fla. Dist. Ct. App. | 2012Background
- May appeals his convictions and sentences for a home invasion robbery; he contests three issues arising at trial and sentencing.
- The trial court admitted testimony about the detective’s investigation of prior burglaries.
- The court sentenced May to 35 years with a 10-year minimum on Counts I and II; Counts IV and V were time served.
- A different judge later corrected Count II and resentenced May to 15 years on Count II with a 10-year minimum.
- May argues sentencing relied on his untruthfulness and betrayal of the victim, and that public defender fees were imposed without an opportunity to be heard.
- The appellate court finds error in sentencing factors and PD fees errors, and remands for resentencing before a different judge with opportunity to be heard on PD fees.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether admission of detective-burglaries testimony was proper | State argues issue not preserved as to improper factor. | May contends testimony improperly influenced sentencing. | No reversible error; issue resolved as to evidentiary ruling in trial. |
| Whether relying on untruthfulness as a sentencing factor was fundamental error | State contends any error was not preserved but declines to concede fundamental error. | May asserts perjury during trial is an improper sentencing factor. | Fundamental error established; reliance on perjury improper for sentencing. |
| Whether public defender fees could be imposed without notice/hearing | State agrees to remand for hearing on PD fees. | May asserts improper imposition without opportunity to be heard. | Remand required to provide opportunity to be heard on PD fees. |
Key Cases Cited
- Bratcher v. State, 743 So.2d 112 (Fla. 5th DCA 1999) (perjury as sentencing factor improper)
- Smith v. State, 62 So.3d 698 (Fla. 2d DCA 2011) (due process when sentencing factors include testimony truthfulness)
- Ciccia v. State, 854 So.2d 243 (Fla. 4th DCA 2003) (notice for public defender fees required)
- Croom v. State, 36 So.3d 707 (Fla. 1st DCA 2010) (de novo review of unpreserved sentencing error)
- Garzon v. State, 980 So.2d 1038 (Fla. 2008) (preservation standards for sentencing errors)
- Young v. State, 33 So.3d 151 (Fla. 4th DCA 2010) (improper use of factors during sentencing)