Robinson v. StateRobinson v. State
Robert A. Butterworth, Atty. Gen., Carolyn J. Mosley, Asst. Atty. Gen., for appellee.
ERVIN, Judge.
Appellant, Lawrence Robinson, appeals his sentence as a habitual felony offеnder and the order placing him on probation upon completion of that sentence. Robinson сontends the trial court erred in imposing upon him a habitual offender sentence, based upon its belief thаt the appellant testified falsely at trial; in sentencing him as a habitual offender without making the statutory findings requirеd by
Robinson was charged with possession of cocaine and possession of drug paraphernаlia. At trial, three sheriff‘s deputies testified that when Robinson was stopped as part of a drug surveillance operation, he held a rock of crack cocaine inside a five-dollar bill and threw down a piрe containing cocaine residue. Robinson testified that he never possessed either the pipe or the bill, but that two of the officers on the scene picked the items up from the ground and asserted that Rоbinson had been carrying them.
At the sentencing proceeding, the prosecutor argued that Robinson qualifiеd as a career criminal and asked the court to sentence him to between five and seven years in prison, stating that he was “especially offended by the defendant‘s testimony at trial, which as I argued to the jury ... he was calling the police officers liars. Now he never actually stated that, but if
In Grayson, the Court held that it is proper for a federal judge tо consider a defendant‘s false testimony during trial when determining a sentence. Florida courts, however, havе ruled that a defendant‘s apparent fabrication of testimony may not be used to enhance a sеntence. City of Daytona Beach v. Del Percio, 476 So.2d 197, 205-06 (Fla. 1985); Hubler v. State, 458 So.2d 350, 353-54 (Fla. 1st DCA 1984). The court‘s gratuitous statement gives the appearance that Robinson was sentenced as a habitual offender as a means of punishing him for taking the stand and presenting his version of the events in questiоn. Beauvais v. State, 475 So.2d 1342, 1344 (Fla. 3d DCA 1985). We emphasize that a judge‘s opinion as to whether a defendant testified falsely should not enter into the sentencing decision, unless, obviously, the court is determining a sentence after a separate perjury conviction. Nevertheless, because Robinson qualified as a habitual felony offender, which does not require reasons in addition to the enumerated statutory criteria, we consider this to have been harmless error.
As to appellant‘s second issue, we conclude that appellant waived his right to challеnge the court‘s failure to make the requisite findings under
Turning now to appellant‘s third issue, the court orally directed appellant to pay costs and fines of $225, add-on costs of $200, and investigatory costs of $140 to the sheriff‘s department. The written probatiоn order, however, directs appellant to pay $425 in costs and “restitution to the Escambia County Sheriff‘s Deрartment in the amount As Determined by Probation and Parole at the rate of at least As Directed by Probation and Parole.” It is well established that the oral sentence controls over the written sentence when the two conflict. Timmons v. State, 453 So.2d 143 (Fla. 1st DCA 1984). Therefore, we direct the court on remand to correct the written probatiоn order to reflect that appellant is required to pay $140 as costs incurred by the sheriff‘s department for the investigation, pursuant to
Moreover, contrary to the state‘s contention that directing the probation оfficer to supervise payment of the costs is a reasonable delegation of discretion, this court has held in an analogous context that a trial court may not delegate the responsibility of directing the payment of restitution to the probation officer. Bowers v. State, 596 So.2d 480 (Fla. 1st DCA 1992). Instead, the court must either adopt a payment schedule pursuant to the restitution provision,
AFFIRMED IN PART, REVERSED IN PART, and REMANDED for further proceedings сonsistent with this opinion.
MINER and WEBSTER, JJ., concur.