Desue v. State, 91-1640

CourtCourt of Appeal of Florida (US)
Writing for the CourtERVIN
Citation605 So.2d 933
Parties17 Fla. L. Week. D2247 Michael Charles DESUE, Appellant, v. STATE of Florida, Appellee.
Docket NumberNo. 91-1640,91-1640
Decision Date25 September 1992

Page 933

605 So.2d 933
17 Fla. L. Week. D2247
Michael Charles DESUE, Appellant,
v.
STATE of Florida, Appellee.
No. 91-1640.
District Court of Appeal of Florida,
First
District.
Sept. 25, 1992.

Page 934

Nancy A. Daniels, Public Defender, Abel Gomez, Asst. Public Defender, for appellant.

Robert A. Butterworth, Atty. Gen., Amelia L. Beisner, Asst. Atty. Gen., for appellee.

ERVIN, Judge.

Appellant, Michael Charles Desue, appeals his judgment and sentence imposed following violation of probation, contending that the trial court erred in (1) refusing to determine whether procedures used to identify him were unnecessarily suggestive, (2) using a multiplier to calculate legal constraint points on appellant's guideline scoresheet, (3) failing to credit appellant with jail and prison time previously served, and (4) entering a written revocation order that did not conform to its oral pronouncement. We affirm issue 1, reverse in part issues 2, 3, and 4, and remand for resentencing.

In 1987, the trial court sentenced Desue to five years' probation for ten convictions of uttering a forged instrument. His probation was revoked in 1988 and again in July 1989. On September 9, 1989, Desue's probation officer filed a third affidavit of violation, alleging that Desue had violated a condition of probation by committing armed robbery and petit theft. At the violation hearing, Desue objected to the in-court identification of him by the victim as being tainted by impermissibly suggestive procedures. Desue claims on appeal that the trial court refused to consider his objection. We cannot agree. Contrary to appellant's contention, the trial court stated that any showing of suggestiveness of the procedures would go to the weight of the evidence rather than its admissibility, and thereafter permitted full direct and cross-examination on this issue. We conclude that the court, as trier of fact, had sufficient evidence before it to determine whether the identification of Desue was reliable. Cf. United States v. Smith, 571 F.2d 370, 373 n. 3 (7th Cir.1978) (because defendant had opportunity to present evidence regarding lineup, trial judge was able to determine whether evidence was sufficient to support a finding of violation of probation).

As to issue 2, Desue's guideline scoresheet indicates his primary offense at conviction was "UTTERING FORGED INSTRUMENT (10 cases)." Accordingly, six points for the legal constraint category were multiplied by ten, resulting in...

To continue reading

Request your trial
14 practice notes
  • Desue v. Jones, No. SC16–1222
    • United States
    • United States State Supreme Court of Florida
    • March 23, 2017
    ...87–CF–155, 87–CF–156, 87–CF–157, 87–CF–392, 87–CF–393, 87–CF–400, 87–CF–401, 87–CF–433, 87–CF–434, and 87–CF–435). See Desue v. State , 605 So.2d 933, 934 (Fla. 1st DCA 1992). The circuit court subsequently revoked Desue's probation in 1989 and sentenced him to a term of years on each forge......
  • Jefferson v. State, No. 4D02-2258.
    • United States
    • Court of Appeal of Florida (US)
    • October 30, 2002
    ...to impose a one cell bump up because of the VOP resulting in a permissible sentence of 22 years, has been rejected in Desue v. State, 605 So.2d 933 (Fla. 1st DCA 1992). In Desue, the appellant contended, inter alia, that the trial court erred in imposing a sentence following a VOP by using ......
  • Perry v. State, No. 1D03-0986.
    • United States
    • Court of Appeal of Florida (US)
    • November 19, 2003
    ...Hummel v. State, 782 So.2d 450 (Fla. 1st DCA 2001); Vitanzo v. State, 750 So.2d 662, 663 (Fla. 1st DCA 1999); see also Desue v. State, 605 So.2d 933, 935 (Fla. 1st DCA Accordingly, we affirm the trial court's order in regards to the appellant's first three claims, but reverse the trial cour......
  • Trueblood v. State, No. 93-396
    • United States
    • Court of Appeal of Florida (US)
    • April 22, 1994
    ...specifying the amount of prison time appellant had served. The state asserts that pursuant to this court's opinion in DeSue v. State, 605 So.2d 933 (Fla. 1st DCA 1992), the trial court was not required to specify the amount of previously served prison time for which appellant was to be give......
  • Request a trial to view additional results
14 cases
  • Desue v. Jones, No. SC16–1222
    • United States
    • United States State Supreme Court of Florida
    • March 23, 2017
    ...87–CF–155, 87–CF–156, 87–CF–157, 87–CF–392, 87–CF–393, 87–CF–400, 87–CF–401, 87–CF–433, 87–CF–434, and 87–CF–435). See Desue v. State , 605 So.2d 933, 934 (Fla. 1st DCA 1992). The circuit court subsequently revoked Desue's probation in 1989 and sentenced him to a term of years on each forge......
  • Jefferson v. State, No. 4D02-2258.
    • United States
    • Court of Appeal of Florida (US)
    • October 30, 2002
    ...to impose a one cell bump up because of the VOP resulting in a permissible sentence of 22 years, has been rejected in Desue v. State, 605 So.2d 933 (Fla. 1st DCA 1992). In Desue, the appellant contended, inter alia, that the trial court erred in imposing a sentence following a VOP by using ......
  • Perry v. State, No. 1D03-0986.
    • United States
    • Court of Appeal of Florida (US)
    • November 19, 2003
    ...Hummel v. State, 782 So.2d 450 (Fla. 1st DCA 2001); Vitanzo v. State, 750 So.2d 662, 663 (Fla. 1st DCA 1999); see also Desue v. State, 605 So.2d 933, 935 (Fla. 1st DCA Accordingly, we affirm the trial court's order in regards to the appellant's first three claims, but reverse the trial cour......
  • Trueblood v. State, No. 93-396
    • United States
    • Court of Appeal of Florida (US)
    • April 22, 1994
    ...specifying the amount of prison time appellant had served. The state asserts that pursuant to this court's opinion in DeSue v. State, 605 So.2d 933 (Fla. 1st DCA 1992), the trial court was not required to specify the amount of previously served prison time for which appellant was to be give......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT