Weston v. State

Decision Date31 May 1984
Docket NumberNo. AS-470,AS-470
PartiesJoseph WESTON, Appellant, v. STATE of Florida, Appellee.
CourtFlorida District Court of Appeals

Michael Allen, Public Defender, and Charlene V. Edwards, Asst. Public Defender, for appellant.

Jim Smith, Atty. Gen., and John W. Tiedemann, Asst. Atty. Gen. for appellee.

NIMMONS, Judge.

Appellant was convicted of grand theft of merchandise from a department store. He complains that the trial court erred in overruling his objections to the state's eliciting from the arresting officer the fact that Weston gave him a false name, "James Dotson," when the officer apprehended him across the street from the store ten minutes after Weston fled the scene. Appellant claims that such testimony was an impermissible and prejudicial use at trial of an "alias." We disagree. Clearly, the state was entitled to present this testimony as evidence of a consciousness of guilt of the offense which had just been committed. Cf. Brown v. State, 391 So.2d 729 (Fla. 3rd DCA 1980); Finlay v. State, 424 So.2d 967 (Fla. 3rd DCA 1983).

The defendant also claims that the trial court failed to make the requisite findings in connection with his sentence to an extended term under the habitual offender law, Section 775.084, Florida Statutes (1981). With this contention we agree. In order for a defendant to be sentenced to an extended term under this law, the sentencing court must make findings of fact, stated on the record in open court if not in writing, showing on their face that an extended term is necessary for the protection of the public from further criminal activity of the defendant. Section 775.084(3)(d); Eutsey v. State, 383 So.2d 219, 226 (Fla.1980); Adams v. State, 376 So.2d 47 (Fla. 1st DCA 1979); Chukes v. State, 334 So.2d 289 (Fla. 4th DCA 1976). The trial judge made no such findings. He merely stated, upon imposing sentence, his conclusion that an extended term was necessary for the protection of the public from further criminal activity by the defendant. A seven-year term was imposed, two years of which was an enhanced penalty over and above the statutory maximum for second degree grand theft.

The state contends that since the defendant's attorney did not make an objection in the trial court to the court's failure to make the requisite findings, the defendant is precluded from raising the issue on appeal. Inasmuch as we have not long ago so ruled in a similar case, Walker v. State, 442 So.2d 977 (Fla. 1st DCA 1983), we would ordinarily accept the state's position. However, the Florida Supreme Court has recently issued its opinion in State v. Rhoden, 448 So.2d 1013 (Fla.1984), which we feel is controlling and dictates a contrary result.

In Rhoden, the trial court sentenced the juvenile defendant as an adult without making the findings required by Section 39.111(6), Florida Statutes (1981), which sets forth the criteria pertaining to the suitability of adult sanctions. Section 39.111(6)(d) requires the court to render written findings of fact and the reasons for the decision to impose an adult sentence. In Rhoden, after imposition of sentence, defense counsel, as in the case sub judice, did not interpose an objection to the court's failure to make the requisite findings of fact. The Supreme Court rejected the state's contention that Rhoden's failure to object precluded him from asserting such error on appeal. The Supreme Court stated:

Further, with regard to the respondent's failure to contemporaneously object to the trial judge's failure to follow the statute in sentencing respondent, we agree with the reasoning of Judge Sharp in her dissent in Glenn v. State [411 So.2d 1367 (Fla. 5th DCA 1982)]. Judge Sharp pointed out that it is difficult, if not impossible, for counsel to contemporaneously object to the absence of a written order at the sentencing hearing "since counsel at that stage does not know for sure what the written sentence may be, and a written order pursuant to section 39.111 may indeed be subsequently filed" 411 So.2d at 1368. The contemporaneous objection rule, which the state seeks to apply here to prevent respondent from seeking review of his sentence, was fashioned primarily for use in trial proceedings. The rule is intended to give trial judges an opportunity to address objections made by counsel in trial proceedings and correct errors. See Simpson v. State, 418 So.2d 984 (Fla.1982), cert. denied, 459 U.S. 1156, 103 S.Ct. 801, 74 L.Ed.2d 1004 (1983); State v. Cumbie, 380 So.2d 1031 (Fla.1980); Clark v. State, 363 So.2d 331 (Fla.1978). The rule prohibits...

To continue reading

Request your trial
23 cases
  • Mischler v. State
    • United States
    • Florida District Court of Appeals
    • October 17, 1984
    ...objection Mitchell v. State, 458 So.2d 10 (Fla. 1st DCA 1984); Rhoden v. State, 448 So.2d 1013 (Fla.1984); See also Weston v. State, 452 So.2d 95 (Fla. 1st DCA 1984); Jolly v. State, 454 So.2d 45 (Fla. 1st DCA 1984); Perry v. State, 457 So.2d 543 (Fla. 4th DCA 1984). Guidelines do not requi......
  • Steiner v. State
    • United States
    • Florida District Court of Appeals
    • May 21, 1985
    ...the trial court. State v. Rice, 464 So.2d 684 (Fla. 5th DCA 1985); Higgs v. State, 455 So.2d 451 (Fla. 5th DCA 1984); Weston v. State, 452 So.2d 95 (Fla. 1st DCA 1984), pet. for review denied, 456 So.2d 1182 (Fla.1984); Manning v. State, 452 So.2d 136 (Fla. 1st DCA 1984). Applying the contr......
  • Walcott v. State
    • United States
    • Florida District Court of Appeals
    • November 15, 1984
    ...disapproved Dunman, Burley and Glenn stating that the purpose for the COR is not present in the sentencing process. In Weston v. State, 452 So.2d 95 (Fla. 1st DCA 1984), the First DCA followed Rhoden in a case where the sentencing error was failure to make findings required by section 39.11......
  • Conley v. State
    • United States
    • Florida District Court of Appeals
    • January 2, 1992
    ...prosecution, testimony regarding the alias is admissible as evidence of a consciousness of guilt of the instant offense. Weston v. State, 452 So.2d 95, 95 (Fla. 1st DCA), review denied, 456 So.2d 1182 TRIAL ISSUE 4 During the defendant's case, the prosecutor queried defense witness Russell ......
  • 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