MICHAEL SHAY ASHWOOD, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Florida appellate court reversed a theft conviction and remanded for new trial because the trial court failed to instruct the jury on maximum and minimum sentences as required by Florida Rule of Criminal Procedure 3.390(a).
A trial court must instruct the jury on maximum and minimum sentences when requested, and failure to do so requires reversal and remand for a new trial.
[1] A trial court must instruct the jury on maximum and minimum sentences when requested under Florida Rule of Criminal Procedure 3.390(a), and failure to provide such instru…
[2] Upon remand for new trial, a trial court must provide the defendant a reasonable opportunity to present evidence in mitigation of sentence before imposing sentence.
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Join FLexlaw to unlock all legal intelligence“an instruction of maximum and minimum sentences is mandatory when requested and failure to give the instruction requires a remand for a new trial”
Court citing Tascano v. State to establish the mandatory nature of sentence instruction requirement
Ashwood was convicted of theft by a jury. Immediately after conviction, the trial judge sentenced him without allowing him to present evidence in miti…
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JOANOS, Judge.
The defendant raises four points challenging the judgment entered against him after a jury found him guilty of theft. After a review of the record, we find merit in two of the contentions raised. First, the trial court erred in refusing to grant the defendant’s request under Florida Rule of Criminal Procedure 3.390(a) to instruct the jury on the maximum and minimum sentences which may be imposed. According to the Florida Supreme Court’s recent decision in Tascano v. State, 393 So. 2d 540 (rehearing denied 1981) an instruction of maximum and minimum sentences is mandatory when requested and failure to give the instruction requires a remand for a new trial.
Although the remand for a new trial renders the second error harmless, we make note of it to avoid the possibility that it is repeated. Directly after the defendant was found guilty, he was sentenced by the judge despite the defendant’s request that he be given an opportunity to present evidence in mitigation of the sentence. If the defendant is sentenced again, subsequent to the new trial, the trial judge should give the defendant a reasonable opportunity to present evidence that would go towards mitigation of his sentence. Culbertson v. State, 306 So. 2d 142 (Fla.2d DCA 1975); Fla.R.Crim.P. 3.780(b).
REVERSED and REMANDED for a new trial.
ERVIN and BOOTH, JJ., concur.
PER CURIAM.
We adhere to our opinion of reversal and remand pursuant to Tascano v. State, 363 So. 2d 405, reversed, 393 So. 2d 540 (Fla. 1980), reh. denied, February 27, 1981; but, in accord with this court’s opinions in Studstill v. State, 397 So. 2d 753 (Fla.1st DCA 1981), and Thompson v. State, 405 So. 2d 990 (Fla.1st DCA 1981), we certify to the Supreme Court the following question:
Can an appellate court apply the harmless error doctrine, Section 924.33 and Section 59.041, Florida Statutes (1979), to the failure of a trial court to give the jury instruction required by Rule 3.390(a), Florida Rules of Criminal Procedure, if the appellant’s guilt is clearly established and the appellate court determines the error could not have affected the verdict?
ERVIN, BOOTH and JOANOS, JJ., concur.
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Citator
Cited By
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State v. Ashwood, 407 So. 2d 1 (Fla. 1981)…PER CURIAM. Affirmed. 405 So. 2d 991. Murray v. State, 403 So. 2d 417 (Fla.1981). ADKINS, Acting C. J., and BOYD, OVERTON, ALDERMAN and MCDONALD, JJ. concur.…
Authorities Cited
- Tascano v. State, 393 So. 2d 540 (Fla. 1980)
- Theodus B. McFARLIN v. State, 363 So. 2d 405 (Fla. 1st DCA 1978)
- Culbertson v. State, 306 So. 2d 142 (Fla. 2d DCA 1975)
- Studstill v. State, 397 So. 2d 753 (Fla. 1st DCA 1981)
- Thompson v. State, 405 So. 2d 990 (Fla. 1st DCA 1981)