Desue v. State

• Decision Date: 25 September 1992
• Docket Number: No. 91-1640,91-1640
• Citation: 605 So.2d 933
• Parties: 17 Fla. L. Week. D2247 Michael Charles DESUE, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

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.

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 His probation was revoked in 1988 and again in July 1989.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 60 points for legal constraint. We conclude that the trial court erred in applying a multiplier to appellant's original ten offenses. Fla.R.Crim.P. 3.701(d)(6) ("Legal status points are to be assessed only once whether there are one or more offenses at conviction."); Jennings v. State, 595 So.2d 251, 253 (Fla. 1st DCA 1992) ("prohibition against multiplying legal status points by the number of offenses at conviction is ... applicable to the number of legal constraints reflected in the prior record"). See also Flowers v. State, 586 So.2d 1058 (Fla.1991) (error to multiply defendant's legal constraint points by five, representing the five offenses committed while the defendant was on probation).

Desue received a guideline score of 146 points, which resulted in a recommended range of seven to nine years' incarceration, and a permitted range of 5 1/2 to 12 years. The court sentenced him to 12 years in prison. The legal constraint error reduces Desue's total score four cells from 146 to 90, producing a recommended range of 3 1/2 to 4 1/2 years and a permitted range of 2 1/2 to 5 1/2 years. The state argues that the use of the multiplier was, under the circumstances, harmless error, as the court had the discretion to increase appellant's sentence three cells, thereby resulting in the same sentence, because his probation had been revoked three successive times. See Williams v. State, 594 So.2d 273 (Fla.1992) (when there are successive violations of probation, the sentences may be enhanced one cell or guideline range for each violation). Although the lower court did have such option, the court did not employ a...