Taylor v. StateTaylor v. State
PER CURIAM.
By petition for rehearing, the state points out several oversights in our opinion published July 24, 1991. Accordingly, said opinion is vacated and the following opinion is issued in its place:
Anthony Taylor appeals from a conviction of robbery with a firearm and sentence of forty years’ imprisonment with credit for time served.
Of the four appellate points presented only two require comment. The first has to do with appellant‘s contention that error was committed by the trial court in fаiling to hold a Richardson1 hearing. We hold that this issue was not properly preserved. The question arose just prior to voir dire examination when the prosecutor advised the defendant that he might call a certain detective who had not been named as a possible witness in this case. He had been named in a companiоn case tried just previously. The defendant objected, but the court advised him that he was simply being put on notiсe that the prosecutor might call this witness. The court stated further that they would take it up later if the witness was оffered. The defendant then asked for, and was denied, a continuance in order to take the witness‘s deposition. In response, the prosecutor stated that he would make the witness available if he intended to use him. Later, the following day, when the witness was offered by the state, no objection was made by defense сounsel, nor was there any request for a Richardson hearing, because he had apparently talked to the witnеss. While there is no record proof that defense counsel spoke to the witness, a Richardson hearing was, nevertheless, clearly waived because counsel never requested one when the matter was first raised, nоr did he object later or request such a hearing when the witness was, in fact, offered.
In a somewhat similar situatiоn the Florida Supreme Court stated in Lucas v. State, 376 So.2d 1149, 1151-1152 (Fla. 1979):
It is clear from the record in this case that the state failed to cоmply with Rule 3.220. It is also clear that the trial judge allowed the undisclosed witness to testify without a Richardson inquiry into the surrounding circumstаnces of the state‘s non-compliance. On these points, appellant‘s argument is well taken. However, one essential ingredient is missing. Since the state‘s non-compliance with Rule 3.220 does not require automаtic reversal, it was incumbent upon the appellant to raise a timely objection and thereby allow the trial court to specifically rule on the issue. The record shows that while defense counsel brought the state‘s non-compliance to the attention of the court, he did not interpose an objection; but rather, he deferred to the trial court‘s statement of the applicable law. This court will not indulge in the presumption that the trial judge would have made an erroneous ruling had an objection been made and authorities cited contrary to his understanding of the law. Under the circumstances, the trial judge
was not required to make further inquiry.
The second point we address has to do with the imposition of enhanced penalties based upon the habitual offendеr statute,
While it is true that a sentence imposed under section 775.084 is not subject to the sentencing guidelines, ... it is our view that only a sentеnce imposed in accordance with section 775.084(4)(a) or (b) is exempt from the guidelines. The court may nоt, as it did in this case, adjudicate an offender to be an habitual violent felon and in the case of a fеlony of the first degree, sentence the felon to a term of years rather than to a life sentencе with a minimum mandatory of fifteen years, required by section 775.084(4)(b)1. The felon must be sentenced under section 775.084 or pursuant to the sentencing guidelines, but the trial court may not, as it did here, sentence the felon to a departure guidelines sentence without written reasons on the grounds that the defendant is an habitual violent felony offender.
As in Donald, the trial court in this case has already expressed the view that a life sentence is not apprоpriate. Thus, we find that appellant may not be sentenced in accordance with
Aсcordingly, we affirm the judgment of conviction, but reverse the sentence and remand the cause for appropriate resentencing.
DOWNEY, GUNTHER and FARMER, JJ., concur.