Banks v. State
| Decision Date | 18 November 1992 |
| Docket Number | No. 91-1967,91-1967 |
| Citation | 610 So.2d 514 |
| Parties | 17 Fla. L. Week. D2617 Perves BANKS, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Nancy A. Daniels, Public Defender, Tallahassee, for appellant.
Robert A. Butterworth, Atty. Gen., Charles T. Faircloth, Jr., Asst. Atty. Gen., Tallahassee, for appellee.
Perves Banks appeals from a final judgment and sentence following a jury trial in which appellant was found guilty of battery, sexual battery, and two counts of perjury. Appellant raises three issues on appeal: (1) Whether the trial court erred in refusing to sever appellant's perjury charges from the original charges of sexual battery; (2) whether the trial court erred in denying appellant's motion for judgment of acquittal on the two perjury counts because the state only showed solicitation to commit perjury; and (3) whether the trial court erred in including disputed misdemeanor convictions on appellant's sentencing guidelines scoresheet. We find that no reversible error occurred, and affirm.
Appellant was charged with two counts of sexual battery occurring on the evening of December 11, 1989. The state later added two counts of perjury to the information. Appellant moved for severance of the perjury counts, but the trial court denied the appellant's motion. The perjury charges against appellant were based on the principal theory, not that appellant had committed perjury himself, but that he had helped others commit it.
The victim testified that on December 11, 1989, she worked a 4:00 p.m. to midnight shift as an operator at American Transtech. When she arrived home at her apartment, she went to sleep, but was awakened by knocking at her front door around 1:15 a.m. She got up, opened the door, and saw Perves Banks, a man she had worked with the previous summer at Transtech. She let Banks in to use her phone to try to get a ride. The victim testified that they talked for 20-30 minutes, smoked cigarettes, and when it was apparent the appellant was not going to reach anyone on the phone, she offered to help get his car started or to take him home.
The victim stated that as they began to leave the apartment, appellant attacked her and committed sexual battery. When appellant was arrested, he denied the sexual battery charges.
During appellant's trial, the state called two witnesses who both testified that appellant had asked them to testify to an untruthful alibi for him. These witnesses also testified that appellant had sent them a written question-and-answer script to be utilized during their discovery depositions. Appellant also called them to go over their depositions. Both witnesses testified that they subsequently lied at their discovery depositions.
At the close of the state's case, appellant's counsel moved for a judgment of acquittal on the perjury counts, arguing that the most that had been proven was solicitation to commit perjury. The motion was denied. The jury found the appellant guilty of one count of battery, one count of sexual battery, and two counts of perjury. At sentencing, defense counsel objected to the state's use of three misdemeanor offenses as prior convictions on appellant's guidelines scoresheet because the record of convictions contained no fingerprints. Specifically, the following dialogue took place at the first sentencing hearing:
The sentencing hearing was continued so the state could obtain certified copies of the arrest reports, booking forms, and conviction forms as to the prior misdemeanor arrests. These documents were introduced at the subsequent sentencing hearing. The documents contained a date of birth, physical description, and social security number that were all consistent with appellant. While the booking reports contained fingerprints, it does not appear from the record that any evidence was presented concerning whether the fingerprints on the booking forms matched those of the appellant. At this hearing, the judge asked the appellant whether he had an opportunity to review the documents being admitted into evidence. Defense counsel replied as follows:
Your honor. I would object to their admission. At this point Mr. Barry still hasn't proven the relevance to sentencing my client. There is nothing, other than the name of the defendant in this case, to indicate those documents belong to this Perves Dale Banks.
The court then asked whether counsel doubted the correctness of these records that are attached. Defense counsel responded as follows:
No sir, I don't doubt the correctness. I doubt the relevance because there is no proof that those records address this person named Perves Dale Banks.
The court overruled the objection, admitted the evidence of the prior misdemeanor convictions, and relied on those convictions in calculating appellant's guidelines scoresheet.
Appellant's first argument is that the trial court erred in refusing to sever appellant's perjury charges from the original charges of sexual battery. Our standard for reviewing the trial court's decision is whether the trial court abused its discretion. Crossley v. State, 596 So.2d 447 (Fla.1992). If the crimes are clearly connected in an episodic sense, it is not error to refuse to sever the charges. Solomon v. State, 596 So.2d 789 (Fla. 3d DCA 1992). In this case, appellant committed the perjury in an attempt to avoid prosecution and punishment for sexual battery. The perjury is, therefore, connected and relevant to the charge of sexual battery. Manuel v. State, 524 So.2d 734 (Fla. 1st DCA 1988). We find no error in refusing to sever the trial of the underlying substantive crime from the perjury counts where the false declarations were procured by appellant in order to avoid prosecution for the underlying offense. United States v. Potamitis, 739 F.2d 784 (2d Cir.1984), cert. denied, 469 U.S. 934, 105 S.Ct. 332, 83 L.Ed.2d 269 (1984).
Appellant's next point concerns the sufficiency of the evidence to support his convictions for perjury. At trial, the state proceeded on a principal theory, alleging...
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Woods v. State
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Meyers v. State, 4D00-3533.
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Harp v. State, 97-1355
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Moment v. State, No. 4D99-2391
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