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Bolden v. State

District Court of Appeal of Florida, First District
Oct 8, 1981
404 So. 2d 417 (Fla. Dist. Ct. App. 1981)

Opinion

No. YY-261.

October 8, 1981.

Appeal from the Circuit Court, Duval County, Louis C. Corbin, J.

Michael E. Allen, Public Defender, and Nancy A. Daniels, Asst. Public Defender, Tallahassee, for appellant.

Jim Smith, Atty. Gen., Carolyn M. Snurkowski, Asst. Atty. Gen., Tallahassee, for appellee.


Appellant was convicted of attempted first degree murder by use of a knife and complains that the lower court erred in adjudicating him guilty because it (1) incorrectly denied his motion in limine seeking exclusion of certain evidence pertaining to the victim's pregnancy, and (2) imposed an illegal sentence. As to the former issue, we affirm. The evidence relating to the pregnancy had probative value and appellant has failed to show that any danger of prejudice substantially outweighed the evidentiary value of the facts submitted. See Section 90.403, Florida Statutes (1979), and Buchman v. Seaboard Coastline R.R. Co., 381 So.2d 229 (Fla. 1980). Moreover, the remarks made by the prosecutor relating to such evidence were not so persuasively improper as to deny appellant a fair trial. Peterson v. State, 376 So.2d 1230 (Fla. 4th DCA 1979).

We agree, however, that the court's imposition of a life sentence for attempted first degree murder is excessive since the maximum penalty for such offense is 30 years. See King v. State, 390 So.2d 315 (Fla. 1980). Such a sentencing error is fundamental even in the absence of objection. Castor v. State, 365 So.2d 701, 703 (Fla. 1978).

Accordingly, the life sentence with credit for time previously served awaiting disposition is vacated, and the cause is remanded with directions for the lower court to impose a sentence which is consistent with our opinion.

ERVIN, WENTWORTH and JOANOS, JJ., concur.


Summaries of

Bolden v. State

District Court of Appeal of Florida, First District
Oct 8, 1981
404 So. 2d 417 (Fla. Dist. Ct. App. 1981)
Case details for

Bolden v. State

Case Details

Full title:WILLIE BOLDEN, APPELLANT, v. STATE OF FLORIDA, APPELLEE

Court:District Court of Appeal of Florida, First District

Date published: Oct 8, 1981

Citations

404 So. 2d 417 (Fla. Dist. Ct. App. 1981)

Citing Cases

Strickland v. State

We affirm. Defendant cites King v. State, 390 So.2d 315 (Fla. 1980) and Bolden v. State, 404 So.2d 417 (Fla.…