Allred v. State, 93-736
| Decision Date | 16 September 1994 |
| Docket Number | No. 93-736,93-736 |
| Citation | 642 So.2d 650 |
| Parties | 19 Fla. L. Weekly D2051 Donald Lloyd ALLRED, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Nancy A. Daniels, Public Defender, Chris W. Hoeg, Asst. Public Defender, Tallahassee, for appellant.
Robert A. Butterworth, Atty. Gen., Amelia L. Beisner, Asst. Atty. Gen., Tallahassee, for appellee.
Donald Lloyd Allred appeals his conviction for aggravated battery. The victim suffered severe injuries and required brain surgery. We affirm the conviction and the order placing appellant on two years' community control, to be followed by thirteen years on probation, together with all conditions of probation except the condition regarding restitution. We remand for further proceedings as to restitution.
Allred argues that his conviction should be reversed, because the jury heard evidence of collateral crimes that was not relevant to the offense for which he was tried. The state called witnesses who testified over objection that Allred hit his first wife and a former girl friend. If appellant had not put his character in issue, this testimony would have been improper. Heuring v. State, 513 So.2d 122 (Fla.1987); Walker v. State, 642 So.2d 605 (Fla. 1st DCA 1994); Weitz v. State, 510 So.2d 1060 (Fla. 4th DCA 1987) (). Here, however, appellant claimed a lack of violent propensity, asserting he would not strike a woman. See Fletcher v. State, 619 So.2d 333 (Fla. 1st DCA 1993), review denied, 629 So.2d 132 (). Impeachment evidence was properly admitted after Allred "opened the door" by testifying that he had never hit any woman. Sec. 90.404(2)(b), Fla.Stat.
Allred attacks the restitution condition on grounds the trial court did not hold a restitution hearing. But, at the sentencing hearing, the state presented bills aggregating $40,631.21 for medical expenses the victim had incurred, an amount the defense did not dispute. 1 The trial judge orally ordered restitution in the amount of $39,691.21, to be paid in installments, and directed appellant and the probation officer to try to agree on the amount of monthly payments. 2 The written order entered a week after the oral pronouncement made no mention of monthly installments, however, and specified a different total: $41,153.96.
The discrepancy between written order and oral pronouncement requires reversal. See Sumter v. State, 570 So.2d 1039, 1041 (Fla. 1st DCA 1990), review dismissed, 583 So.2d 1037 (Fla.1991). As the learned trial judge recognized, the judicial duty to determine the defendant's ability to pay restitution and to set the amount of monthly installment payments may not be delegated to the probation officer, where a dispute requires resolution. Smith v. State, 613 So.2d 1325 (Fla. 1st DCA 1992), review dismissed, 618 So.2d 210 (Fla.1993); Ashe v. State, 582 So.2d 759 (Fla. 1st DCA 1991). On remand, if the parties cannot agree on amounts, a restitution hearing will be necessary. At any such hearing, Allred should not be precluded from demonstrating his...
To continue reading
Request your trial
-
Robertson v. State
...for the State to impeach the defendant's statements and to show that he was not being truthful on the stand. See Allred v. State, 642 So.2d 650 (Fla. 1st DCA 1994); Lusk v. State, 531 So.2d 1377 (Fla. 2d DCA 1988). See also Howard v. State, 228 Ga.App. 775, 492 S.E.2d 683 (1997) (evidence d......
-
Robertson v. State
...the state was properly permitted to elicit the nature of the defendant's prior felony conviction on cross-examination); Allred v. State, 642 So.2d 650 (Fla. 1st DCA 1994)(by testifying that he lacked a violent propensity and asserting that he had never hit a woman, defendant opened the door......
-
Billie v. State, 3D01-1303.
...suggesting that he was the peaceful victim and that he had never been violent with the victim or anyone else.); Allred v. State, 642 So.2d 650 (Fla. 1st DCA 1994)(the defendant claimed a lack of violent propensity); see also Dennis v. State, 817 So.2d 741, 753 (Fla.2002); Williams v. State,......
-
Washington v. State
...victim "opened the door" for cross-examination or impeachment with evidence that linked defendant to the murder); Allred v. State, 642 So.2d 650 (Fla. 1st DCA 1994) (in prosecution for aggravated battery, defendant's claim of lack of violent propensity and his assertion that he would not st......
-
Evidentiary trends in domestic violence.
...History Evidence in the Criminal Prosecution: A Common Sense Approach, 16 Pace L. Rev. 73,75 (1995). [30] See, e.g., Allred v. State, 642 So. 2d 650 (Fla. 1st D.C.A. 1994); Flanagan v. State, 586 So. 2d 1085 (Fla. 1st D.C.A. 1991); Wetta v. State, 456 S.E.2d 696 (Ga. Ct. App. 1995); People ......