Mauney v. State

District Court of Appeal of Florida

Mauney v. State

553 So. 2d 707, 14 Fla. L. Weekly 2572, 1989 Fla. App. LEXIS 6156, 1989 WL 133056

CourtDistrict Court of Appeal of Florida

DecidedNovember 8, 1989

DocketNo. 88-3229

StatusPublished

Cited by4 cases

This text of 553 So. 2d 707 (Mauney 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.

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Mauney v. State, 553 So. 2d 707, 14 Fla. L. Weekly 2572, 1989 Fla. App. LEXIS 6156, 1989 WL 133056 (Fla. Ct. App. 1989).

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Opinion

LETTS, Judge.

When sentencing the defendant, the trial court departed upward from the recommended guideline range. The scoresheet included the written words “recent release from prison.” This notation was apparently the only reason for the departure and was based on an oral representation to that effect by the assistant state attorney. No objection was made. We affirm.

There are several cases standing for the proposition that departure is justified where only “a short period of time” has transpired between the crime at issue arid release from incarceration for some other transgression. Lee v. State, 537 So.2d 704 (Fla. 1st DCA 1989); see also Williams v. State, 484 So.2d 71 (Fla. 1st DCA 1986), affirmed, 504 So.2d 392 (Fla.1987). It is true that in Lovett v. State, 536 So.2d 1087 (Fla. 4th DCA 1988), we found hearsay testimony, as to a prior record, insufficient. However, in Lovett, the defense “strongly objected” to the hearsay testimony at sentencing. In the ease at bar, no objection was made, and because this involved the existence of a factual question, there should have been a contemporaneous objection. State v. Whitfield, 487 So.2d 1045, 1046, n. 2 (Fla.1986); Castor v. State, 365 So.2d 701 (Fla.1978).

[708]*708We find no merit to the remaining point on appeal.

AFFIRMED.

GARRETT and WARNER, JJ„ concur.

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LETTS, Judge.

When sentencing the defendant, the trial court departed upward from the recommended guideline range. The scoresheet included the written words “recent release from prison.” This notation was apparently the only reason for the departure and was based on an oral representation to that effect by the assistant state attorney. No objection was made. We affirm.

There are several cases standing for the proposition that departure is justified where only “a short period of time” has transpired between the crime at issue arid release from incarceration for some other transgression. Lee v. State, 537 So.2d 704 (Fla. 1st DCA 1989); see also Williams v. State, 484 So.2d 71 (Fla. 1st DCA 1986), affirmed, 504 So.2d 392 (Fla.1987). It is true that in Lovett v. State, 536 So.2d 1087 (Fla. 4th DCA 1988), we found hearsay testimony, as to a prior record, insufficient. However, in Lovett, the defense “strongly objected” to the hearsay testimony at sentencing. In the ease at bar, no objection was made, and because this involved the existence of a factual question, there should have been a contemporaneous objection. State v. Whitfield, 487 So.2d 1045, 1046, n. 2 (Fla.1986); Castor v. State, 365 So.2d 701 (Fla.1978).

[708]*708We find no merit to the remaining point on appeal.

AFFIRMED.

GARRETT and WARNER, JJ„ concur.

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553 So. 2d 707, 14 Fla. L. Weekly 2572, 1989 Fla. App. LEXIS 6156, 1989 WL 133056, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mauney-v-state-fladistctapp-1989.

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