Hernandez v. State

District Court of Appeal of Florida

Hernandez v. State

556 So. 2d 1165, 1990 Fla. App. LEXIS 516, 1990 WL 6479

CourtDistrict Court of Appeal of Florida

DecidedJanuary 30, 1990

DocketNo. 86-496

StatusPublished

This text of 556 So. 2d 1165 (Hernandez v. State) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Hernandez v. State, 556 So. 2d 1165, 1990 Fla. App. LEXIS 516, 1990 WL 6479 (Fla. Ct. App. 1990).

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Opinion

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.

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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.

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556 So. 2d 1165, 1990 Fla. App. LEXIS 516, 1990 WL 6479, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hernandez-v-state-fladistctapp-1990.

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