Avery v. State, No. BI-446

CourtFlorida District Court of Appeals
Writing for the CourtERVIN
Citation505 So.2d 596,12 Fla. L. Weekly 999
Docket NumberNo. BI-446
Decision Date10 April 1987
Parties12 Fla. L. Weekly 999 Jeffrie K. AVERY, Appellant, v. STATE of Florida, Appellee.

Page 596

505 So.2d 596
12 Fla. L. Weekly 999
Jeffrie K. AVERY, Appellant,
v.
STATE of Florida, Appellee.
No. BI-446.
District Court of Appeal of Florida,
First District.
April 10, 1987.

Michael E. Allen, Public Defender and Kathleen Stover, Asst. Public Defender, Tallahassee, for appellant.

Jim Smith, Atty. Gen. and Patricia Conners, Asst. Atty. Gen., Tallahassee, for appellee.

Page 597

ERVIN, Judge.

The appellant was convicted of grand theft and sentenced to 2 1/2 years incarceration. Three issues are submitted on appeal: 1. The trial court erred in denying the defense motions for judgment of acquittal and directed verdict; 2. the trial court erred in relying on a facially incorrect scoresheet; and 3. the trial court erred in sentencing the appellant as a habitual offender without specifically finding that such sentencing was necessary for the protection of the public. We affirm as to issue one, but reverse and remand as to issues two and three.

The appellant was found guilty of grand theft of $124.06, taken from a cash drawer which had the appellant's fingerprints on it. The appellant argues that unless the state was able to prove that the fingerprints could have been left only at the time the theft occurred, the defendant's alternative version of when his prints were placed on the cash drawer must be accepted as true. The defendant's version, however, need not be accepted if it is contradicted by other proof showing the version to be false. Sorey v. State, 419 So.2d 810 (Fla. 3rd DCA 1982), petition for rev. denied, 476 So.2d 675 (Fla.1985). Here, the state presented adequate circumstantial evidence which, when coupled with the appellant's fingerprints found on the cash drawer, was sufficient to allow the trial court judge to send the case to the jury.

Pursuant to Section 775.084(3)(b), Florida Statutes, the state filed a notice of habitual offender status. On the appellant's guideline scoresheet, the primary offense at conviction, grand theft, was then incorrectly scored as a second degree felony, rather than as a third degree felony as provided by Section 812.014(2)(b), Florida Statutes. The appellant was scored with a total of 58 points, whereas a proper classification would have given him a total of 36 points and placed him in the range of any non-state prison sanction, rather than subjecting him to 2 1/2 to 3 1/2 years incarceration. This reclassification was clearly in error as the habitual offender statute "does not...

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4 practice notes
  • Morganti v. State, No. 87-0312
    • United States
    • Court of Appeal of Florida (US)
    • 12 d3 Agosto d3 1987
    ...1st DCA 1987); Slay v. State, 508 So.2d 1268 (Fla. 1st DCA 1987); Allen v. State, 506 So.2d 1149 (Fla. 1st DCA 1987); Avery v. State, 505 So.2d 596 (Fla. 1st DCA 1987); Johnson v. State, 503 So.2d 959 (Fla. 1st DCA 1987). The Second District appears also to have reached the same result. Smi......
  • Johnson v. State, No. 86-1889
    • United States
    • Court of Appeal of Florida (US)
    • 10 d2 Novembro d2 1987
    ...jury. See Heiney v. State, 447 So.2d 210, 212 (Fla.), cert. denied, 469 U.S. 920, 105 S.Ct. 303, 83 L.Ed.2d 237 (1984); Avery v. State, 505 So.2d 596, 597 (Fla. 1st DCA 1987); L.S. v. State, 446 So.2d 1148, 1150 (Fla. 3d DCA 1984), aff'd, 464 So.2d 1195 (Fla.1985); Sorey v. State, 419 So.2d......
  • Graves v. State, No. 88-1094
    • United States
    • Court of Appeal of Florida (US)
    • 6 d3 Setembro d3 1989
    ...erred in sentencing him as a habitual offender. The state concedes that the trial court's reason is insufficient. See Avery v. State, 505 So.2d 596 (Fla. 1st DCA 1987) (merely reiterating the words of the statute insufficient to justify imposing an enhanced sentence under section 775.084(4)......
  • Brooks v. State, No. BO-129
    • United States
    • Court of Appeal of Florida (US)
    • 16 d2 Junho d2 1987
    ...status as an habitual offender as a reason, but must state other clear and convincing reasons for departure. See Avery v. State, 505 So.2d 596 (Fla. 1st DCA No issue has been raised by the appellant with respect to the validity of the judgments. Judgments affirmed, sentences reversed and re......
4 cases
  • Morganti v. State, No. 87-0312
    • United States
    • Court of Appeal of Florida (US)
    • 12 d3 Agosto d3 1987
    ...1st DCA 1987); Slay v. State, 508 So.2d 1268 (Fla. 1st DCA 1987); Allen v. State, 506 So.2d 1149 (Fla. 1st DCA 1987); Avery v. State, 505 So.2d 596 (Fla. 1st DCA 1987); Johnson v. State, 503 So.2d 959 (Fla. 1st DCA 1987). The Second District appears also to have reached the same result. Smi......
  • Johnson v. State, No. 86-1889
    • United States
    • Court of Appeal of Florida (US)
    • 10 d2 Novembro d2 1987
    ...jury. See Heiney v. State, 447 So.2d 210, 212 (Fla.), cert. denied, 469 U.S. 920, 105 S.Ct. 303, 83 L.Ed.2d 237 (1984); Avery v. State, 505 So.2d 596, 597 (Fla. 1st DCA 1987); L.S. v. State, 446 So.2d 1148, 1150 (Fla. 3d DCA 1984), aff'd, 464 So.2d 1195 (Fla.1985); Sorey v. State, 419 So.2d......
  • Graves v. State, No. 88-1094
    • United States
    • Court of Appeal of Florida (US)
    • 6 d3 Setembro d3 1989
    ...erred in sentencing him as a habitual offender. The state concedes that the trial court's reason is insufficient. See Avery v. State, 505 So.2d 596 (Fla. 1st DCA 1987) (merely reiterating the words of the statute insufficient to justify imposing an enhanced sentence under section 775.084(4)......
  • Brooks v. State, No. BO-129
    • United States
    • Court of Appeal of Florida (US)
    • 16 d2 Junho d2 1987
    ...status as an habitual offender as a reason, but must state other clear and convincing reasons for departure. See Avery v. State, 505 So.2d 596 (Fla. 1st DCA No issue has been raised by the appellant with respect to the validity of the judgments. Judgments affirmed, sentences reversed and re......

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