Hector v. State , 370 So. 2d 447 ( 1979 )

370 So.2d 447 (1979)

Charles HECTOR, Appellant,
v.
STATE of Florida, Appellee.

No. KK-83.

District Court of Appeal of Florida, First District.

May 9, 1979.

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.

PER CURIAM.

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.