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Hector v. State

District Court of Appeal of Florida, First District
May 9, 1979
370 So. 2d 447 (Fla. Dist. Ct. App. 1979)

Summary

In Hector v. State, 370 So.2d 447 (Fla. 1st DCA 1979), the First District distinguished defendant's apparent untruthfulness during his trial testimony, which is a proper sentencing consideration, from appellant's failure to confess, which may not be considered.

Summary of this case from Harden v. State

Opinion

No. KK-83.

May 9, 1979.

Appeal from the Circuit Court, Duval County, Dorothy H. Pate, J.

Michael J. Minerva, Public Defender, and Louis G. Carres, Asst. Public Defender, for appellant.

Jim Smith, Atty. Gen., and Charles A. Stampelos, Asst. Atty. Gen., for appellee.


The question on this appeal is whether the trial court improperly based appellant's two-year prison sentence for grand larceny on the fact that he had not pleaded guilty and had demanded a jury trial on the charge. Reading the trial court's comments in their entirety, it appears that the sentence was based on appellant's apparent untruthfulness during his trial testimony, which is a proper sentencing consideration. U.S. v. Grayson, 438 U.S. 41, 98 S.Ct. 2610, 57 L.Ed.2d 582 (1978). Accordingly, we uphold the sentence. We note, however, that if the trial court had considered appellant's failure to confess to the crime in imposing sentence, such consideration would have been error. Thomas v. U.S., 368 F.2d 941 (5th Cir. 1966); U.S. v. Rodriguez, 498 F.2d 302 (5th Cir. 1974).

AFFIRMED.

McCORD, C.J., and MELVIN and BOOTH, JJ., concur.


Summaries of

Hector v. State

District Court of Appeal of Florida, First District
May 9, 1979
370 So. 2d 447 (Fla. Dist. Ct. App. 1979)

In Hector v. State, 370 So.2d 447 (Fla. 1st DCA 1979), the First District distinguished defendant's apparent untruthfulness during his trial testimony, which is a proper sentencing consideration, from appellant's failure to confess, which may not be considered.

Summary of this case from Harden v. State
Case details for

Hector v. State

Case Details

Full title:CHARLES HECTOR, APPELLANT, v. STATE OF FLORIDA, APPELLEE

Court:District Court of Appeal of Florida, First District

Date published: May 9, 1979

Citations

370 So. 2d 447 (Fla. Dist. Ct. App. 1979)

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Hernandez v. State

Instead, the record reflects that it was not until the trial of the case that the trial court became aware of…

Harden v. State

Id. at 278. In Hector v. State, 370 So.2d 447 (Fla. 1st DCA 1979), the First District distinguished…