Hernandez v. State, 86-496

• Decision Date: 30 January 1990
• Docket Number: No. 86-496,86-496
• Citation: 556 So.2d 1165
• Parties: 15 Fla. L. Weekly D286 Wiley Linyer HERNANDEZ, Appellant, v. The STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 1165

556 So.2d 1165

15 Fla. L. Weekly D286

Wiley Linyer HERNANDEZ, Appellant, v. The STATE of Florida, Appellee.

No. 86-496.

District Court of Appeal of Florida, Third District.

Jan. 30, 1990.

An Appeal from the Circuit Court for Dade County; Steven D. Robinson, Judge.

Bennett H. Brummer, Public Defender, and Bruce A. Rosenthal, Asst. Public Defender, for appellant.

Robert A. Butterworth, Atty. Gen., and Richard L. Polin, Asst. Atty. Gen., for appellee.

Before BARKDULL, NESBITT and FERGUSON, JJ.

PER CURIAM.

Following a jury trial, the appellant was convicted and adjudicated guilty of second degree murder. The victim was the former wife of the appellant and the conviction was based substantially on circumstantial evidence.

The appellant urges error in permitting hearsay evidence as an exception to the general rule, error in permitting testimony of prior events relative to the victim and the appellant which was a violation of Williams v. State, 438 So.2d 152 (Fla. 3d DCA 1983), and lastly, that the trial court erred in enhancing the guideline sentence because of an alleged breach of trust on the part of the appellant, citing Davis v. State, 517 So.2d 670 (Fla.1987).

We find no error in the first two points urged for reversal. State v. Jano, 524 So.2d 660 (Fla.1988); Jano v. State, 510 So.2d 615 (Fla. 4th DCA 1987), approved, 524 So.2d 660 (Fla.1988); Outler v. State, 322 So.2d 623 (Fla. 3d DCA 1975); see 1 C. Erhardt, Florida Evidence § 803.2, at 473-474 (2d ed. 1984); McCormick on Evidence § 297, at 856 (3rd ed. 1984). We do find error in the sentencing under the principles announced in Davis, and hereby set the sentencing aside and remand to the trial court for sentencing within the guidelines.

Affirmed in part, reversed and remanded for resentencing.