Opinion

Barry v. State

  • 330 So. 2d 512
  • 1976 Fla. App. LEXIS 15021
Court
District Court of Appeal of Florida
Filed
Apr 23, 1976
Status
Published
Author
Smith
On the bench
McCord, Rawls, Smith
Cited by
5 cases
Authority
More cited than 64.3%

The opinion

SUBSTITUTED OPINION ON REHEARING

SMITH, Judge.

Barry appeals from judgments and concurrent sentences of commitment on charges of grand larceny and forgery. He contests the sufficiency of the evidence on both counts and asserts other errors.

Upon our initial consideration of the charge that Barry forged the signature of Mary Burtt Foster as an endorsement on a check payable to her, we erroneously conceived that the endorsement was written as “Mary Burtt Foster (JGB)” and that Barry intended thereby to reveal his authorship of the handwriting. In fact, as clearly appears by the State’s petition for rehearing, the evidence and the permissible inferences from the evidence were in conflict at the trial. Our initial disposition to reverse the forgery conviction was therefore in error and the opinion expressing that reversal is withdrawn. The evidence was likewise sufficient to sustain Barry’s conviction of grand larceny.

At the sentencing, the court expressed the view that Barry’s counsel was entitled to present evidence in bar of the sentence, but not evidence in mitigation. Counsel persisted, however, until he managed to present to a reluctant audience the substance of the evidence. Barry’s counsel was entitled as of right to a reasonable opportunity to make a submission, by testimony or otherwise, on any matter “relevant to the sentence.” Rule 3.720(b), R.Cr.P. Neering v. State, 164 So.2d 29 (Fla.App. 1st, 1964), cert. den. 377 U.S. 980 , 84 S.Ct. 1880 , 12 L.Ed.2d 748 (1964), reh. den. 379 U.S. 871 , 85 S.Ct. 16 , 13 L.Ed.2d 78 (1964). However, because the trial court heard and evidently considered the evidence which Barry’s counsel presented and there is no indication that any evidence omitted was of import greater than that which was presented, any error was harmless. Sec. 924.33, F.S.1975.

The judgments and sentences are AFFIRMED.

RAWLS, Acting C. J., and McCORD, J., concur.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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