McInerney v. State, 213 So. 3d 933

Defendant pleaded nolo contendere to DUI manslaughter; other charges were nolle prossed.
At sentencing the court heard testimony from the defendant and a traffic homicide investigator and admitted an eyewitness statement over a hearsay objection.
Eyewitness statement described defendant as “passed out” at a light, then fleeing at high speed (80–90 mph), turning off lights, striking the victim, and attempting to leave the scene; eyewitness performed CPR and confiscated keys.
Investigator testified defendant was driving 51–60 mph in a 25 mph zone, northbound in the southbound lane, and appeared lethargic/incoherent at the scene.
Trial court denied defendant’s motion for a downward departure and sentenced him to 15 years, ordered restitution but reserved determination of amount.
After defendant filed a notice of appeal, the trial court held a hearing and set the restitution amount; defendant appealed.

Issue	State's Argument	Defendant's Argument	Held
Whether hearsay is admissible at non-capital sentencing hearings	Hearsay is admissible at sentencing; any error was harmless	Hearsay is inadmissible in non-capital sentencing	Hearsay is admissible in non-capital sentencing; admission affirmed
Whether trial court lost jurisdiction by determining restitution after notice of appeal	Court may determine reserved restitution amount later; not necessarily divested	Filing notice of appeal divests trial court of jurisdiction to set restitution	Trial court was divested by the notice of appeal; restitution order reversed and remanded for new hearing
Whether denial of downward departure violated due process	Denial was proper given record and sentencing discretion	Denial deprived defendant of due process / was error	No merit to the claim; denial affirmed

State v. Davis, 133 So.3d 1101 (Fla. 3d DCA 2014) (addresses hearsay and corroboration issues in sentencing contexts)
Peters v. State, 984 So.2d 1227 (Fla. 2008) (habeas/probation revocation and evidentiary standards discussion cited)
Brown v. State, 18 So.3d 723 (Fla. 4th DCA 2009) (probation revocation hearsay admissibility noted)
Yisrael v. State, 993 So.2d 952 (Fla. 2008) (limits on hearsay for proving prerequisites to enhanced sentencing)
King v. State, 590 So.2d 1032 (Fla. 1st DCA 1991) (DOC printouts inadmissible to establish habitual offender status)
Eutsey v. State, 383 So.2d 219 (Fla. 1980) (corroboration required when hearsay in presentence report is contested and material to enhancement)
Lewis v. State, 514 So.2d 389 (Fla. 4th DCA 1987) (no corroboration required absent attack on hearsay used at sentencing)
White v. State, 190 So.3d 99 (Fla. 4th DCA 2015) (trial court divested of jurisdiction over reserved restitution once notice of appeal filed)
Marro v. State, 803 So.2d 906 (Fla. 4th DCA 2002) (same rule on divestiture of jurisdiction after appeal)
Whitehead v. State, 22 So.3d 846 (Fla. 4th DCA 2009) (probation revocation hearsay must be supported by non-hearsay evidence to revoke)