Brantley v. State, 89-1750

Citation570 So.2d 364
Decision Date06 November 1990
Docket NumberNo. 89-1750,89-1750
Parties15 Fla. L. Weekly D2711 Cary BRANTLEY, Appellant, v. The STATE of Florida, Appellee.
CourtCourt of Appeal of Florida (US)

Bennett H. Brummer, Public Defender, and Louis Campbell, Asst. Public Defender, for appellant.

Robert A. Butterworth, Atty. Gen., and Angelica D. Zayas, Asst. Atty. Gen., for appellee.

Before JORGENSON, COPE and GODERICH, JJ.

PER CURIAM.

Cary Brantley appeals from a judgment of conviction and sentence for second-degree murder.

We affirm the conviction, reverse the sentence, and remand for resentencing.

After the jury had retired for deliberations, it informed the court that it had a question about the date of the crime and asked the court to provide the testimony of a witness. The trial court called the jury back into the courtroom in the presence of both the prosecutor and defense counsel and asked defense counsel whether he waived defendant's presence. Defense counsel replied, "For the record I waive the presence of the defendant." 1 For reasons not apparent from the record, defendant was not present in the courtroom at the time. Defense counsel and the prosecutor stipulated to the court's answer to the question about the date of the crime. The court declined to provide the witness' testimony. The jury then returned to the jury room to continue deliberations.

We hold that defendant's absence from the courtroom, if error, was harmless beyond a reasonable doubt. See Meek v. State, 487 So.2d 1058 (Fla.1986) (harmless error analysis applies when trial judge, during jury deliberations, responds to question in presence of both defense counsel and prosecutor, but in defendant's absence); Stano v. State, 473 So.2d 1282 (Fla.1985); cert. denied, 474 U.S. 1093, 106 S.Ct. 869, 88 L.Ed.2d 907 (1986); Junco v. State, 510 So.2d 909 (Fla. 3d DCA), rev. denied, 518 So.2d 1276 (Fla.1987).

As to defendant's other challenges to his conviction, we find no merit. See Morgan v. State, 492 So.2d 1072 (Fla.1986); Turner v. State, 431 So.2d 328 (Fla. 3d DCA), rev. denied, 438 So.2d 834 (Fla.1983); DeCastro v. State, 360 So.2d 474 (Fla. 3d DCA 1978), cert. denied, 368 So.2d 1365 (Fla.1979).

Although we affirm the conviction, we reverse the sentence imposed and remand for resentencing. The state properly concedes that the trial court erred in relying on an unproven conviction when completing the sentencing scoresheet. "[W]hen the state offers prior convictions of disputed accuracy, the state must produce corroborating evidence." Morgan v. State, 550 So.2d 151, 153 (Fla. 3d DCA 1989) (citations omitted). The state failed to present such evidence; the scoresheet was therefore erroneously calculated, and the defendant's sentence must be reversed.

Affirmed in part, reversed in part, and remanded.

1 Before trial, defendant had filed a pro se motion asking the court not to honor any waivers of his presence made by his counsel without his express oral or written permission. The record does not indicate whether the trial court ever ruled on this motion or whether the defendant's attorney was even aware of the motion. However, the law is...

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4 cases
  • Febles v. State, 94-1707
    • United States
    • Florida District Court of Appeals
    • May 3, 1995
    ...its conversion into an equivalent Florida score, necessary for a proper determination of the appellant's sentence. See Brantley v. State, 570 So.2d 364 (Fla. 3d DCA), dismissed, 576 So.2d 285 (Fla.1990); Morgan v. State, 550 So.2d 151 (Fla. 3d DCA 1989). We affirm the appellant's remaining ......
  • Thompson v. State, 90-1259
    • United States
    • Florida District Court of Appeals
    • September 17, 1991
    ...Moreover, only such prior convictions as are determined valid and appropriate by the trial court shall be scored. See Brantley v. State, 570 So.2d 364 (Fla. 3d DCA 1990), cause dismissed, 576 So.2d 285 ...
  • Morris v. State, 97-1710
    • United States
    • Florida District Court of Appeals
    • December 10, 1997
    ...resentence the defendant pursuant to the sentencing guidelines. See Thompson v. State, 585 So.2d 1130 (Fla. 3d DCA 1991); Brantley v. State 570 So.2d 364 (Fla. 3d DCA), cause dismissed, 576 So.2d 285 Reversed and remanded. ...
  • Brantley v. State
    • United States
    • Florida Supreme Court
    • December 31, 1990
    ...285 576 So.2d 285 Brantley (Cary) v. State NO. 77,114 Supreme Court of Florida. DEC 31, 1990 Appeal From: 3d DCA 570 So.2d 364 Cause ...

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