STATE OF FLORIDA, PETITIONER,
v.
DEBRA ANN HOHL, RESPONDENT
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The court held that the trial court's refusal to allow the state to submit evidence relevant to sentencing departed from the essential requirements of law.
[1] A trial court must entertain submissions and evidence from parties relevant to sentencing.
[2] A trial court's refusal to allow a party to submit relevant evidence at sentencing departs from the essential requirements of the law.
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Join FLexlaw to unlock all legal intelligenceThe state and defendant agreed to a ten-year sentence, but the trial judge unilaterally decided to impose probation instead. The state was surprised a…
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SCHEB, Judge.
The state seeks to vacate the defendant’s sentence because of the trial court’s refusal to allow it to submit evidence relevant to the sentence. We hold the court’s refusal departed from the essential requirements of the law and grant this writ of certiorari.
The state filed informations charging defendant Debra Ann Hohl with three counts of bank robbery and two counts of attempted bank robbery. At a pre-plea conference on October 27, 1982, counsel for the state and defense appeared before the trial judge and discussed the case at some length. This resulted in the defendant’s agreeing to enter a plea in exchange for a ten-year prison sentence. The court set sentencing for November 9.
Before he came on the bench on November 9, the trial judge informed counsel for the state that he had changed his mind about the previously agreed on sentence and had decided to place defendant on probation. Shortly thereafter, the court convened and the trial judge accepted the defendant’s plea of no contest to all charges. He confirmed his previously announced intention by imposing a fifteen-year probationary term with eleven and one-half months jail time as a condition on one of the charges, with five-year probationary terms on each of the other charges to run concurrent with the fifteen-year term. The state explained that it had been surprised by the judge’s announcement that he was not going to sentence the defendant as the parties originally understood. The state then immediately requested a sentencing hearing, which the trial judge denied.
On November 23 the state moved to set aside the trial court’s judgment on the ground that it was denied an opportunity to be heard on the aspects of sentencing. The state attached to its motion an affidavit from an assistant state attorney. The affiant stated that the defendant’s counsel told him that just prior to the hearing on November 9, at the request of the judge, defendant and her counsel had separate conferences with the judge concerning the sentence to be imposed. The state alleged that it had no prior notice of these conferences. The defendant did not rebut these allegations. The trial court, after a hearing, denied the motion, and the state filed a notice of appeal.1
Florida Rule of Criminal Procedure 3.720(b) requires a trial court to “[e]ntertain submissions and evidence by the parties which are relevant to the sentence.” The rule makes it mandatory for the court to receive evidence of aggravating or mitigating circumstances. Mask v. State, 289 So. 2d 385 (Fla.1974); Trudeau v. State, 348 So. 2d 66 (Fla. 4th DCA 1977), cert. denied, 355 So. 2d 517 (Fla.1978); Culbertson v. State, 306 So. 2d 142 (Fla. 2d DCA 1975). These authorities refer to cases where the defendants’ rights have been infringed; yet, justice is due the accusor as well as the accused, and the rule comprehends the rights of both the state and defense.
Granted the trial court was not bound by the state’s recommendation, State v. Adams, 342 So. 2d 818 (Fla.1977), and no one suggests that the trial court’s disposition was beyond its sentencing authority. Yet, given the state’s unrebutted sworn allegations that the trial court received evidence relevant to sentencing outside the presence of the state, coupled with the fact that the state was not so informed until just prior to the sentencing, the court should have granted the state’s request to submit relevant evidence under rule 3.720(b). Its failure to do so was tantamount to denying the state its day in court. Moreover, we cannot accept the defendant’s argument that the pre-plea conference served as a substitute for a sentencing hearing and the protection afforded parties by rule 3.720(b).2
Accordingly, we grant certiorari, vacate the sentence, and direct the court to hold a sentencing hearing at which time the parties shall be permitted to submit evidence relevant to the sentence as provided by rule 3.720(b).
GRIMES, A.C.J., and CAMPBELL, J., concur. . As the defendant points out, the state has no right to appeal from imposition of a sentence or the placing of a defendant on probation where, as here, such action does not constitute an illegal sentence. However, we have chosen to treat the state’s notice of appeal as a petition for certiorari, as we think the trial court’s actions have departed from the essential requirements of the law to the irremediable prejudice to the state. See State v. Wilcox, 351 So. 2d 89 (Fla. 2d DCA 1977).
. The precise nature of the pre-plea conference is unclear, and there is no transcript concerning this discussion. Apparently, it was of an informal character looking toward entry of a plea with a sentence agreeable to all parties. This seems to be a variety of plea bargaining, which lacks the usual formalities that should normally accompany a negotiated plea.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Davenport v. State, 787 So. 2d 32 (Fla. 2d DCA 2001)…evidence relevant to his sentence); Tuthill v. State, 478 So. 2d 409 (Fla. 3d DCA 1985) (ruling that sentence must be reversed where appellant was not given the opportunity to be heard on the question of the severity of the sentence); State v. Hohl, 431 So. 2d 707 (Fla. 2d DCA 1983). See also Ventura v. State, 741 So. 2d 1187, 1189 (Fla. 3d DCA 1999) (“[T]he opportunity to address the court must be allowed even if the case involves a mandatory sentence.”). Therefore, we reverse Davenport’s sentences and reman…
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Quilla Elkins v. State, 489 So. 2d 1222 (Fla. 5th DCA 1986)…e, I do not think that the failure of the trial judge to articulate them at the sentencing hearing is an additional error and ground to reverse the sentence in this case as argued by appellant. This is in contrast to the situations in State v. Hohl, 431 So. 2d 707 (Fla. 2d DCA 1983) and Scruggs v. State, 463 So. 2d 487 (Fla. 2d DCA 1985) where the accuracy of the guidelines scoresheet was in issue, and one party was denied the right to hear and rebut evidence presented to the court by the other party. However…
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State v. Munro Michael Munson, 604 So. 2d 1270 (Fla. 4th DCA 1992)…of rule 3.720(b) is reversible error. Mask v. State, 289 So. 2d 385, 387 (Fla.1973); Hargis v. State, 451 So. 2d 551, 552 (Fla. 5th DCA 1984); Tuthill v. State, 478 So. 2d 409 (Fla. 3d DCA 1985), rev. denied, 484 So. 2d 10 (Fla.1986); State v. Hohl, 431 So. 2d 707, 709 (Fla. 2d DCA 1983). As Judge Scheb pointed out in Hohl: These authorities refer to cases where the defendants’ rights have been infringed; yet justice is due the accusor [sic] as well as the accused, and the rule comprehends the rights of both…
Previewing 3 of 9 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. Adams, 342 So. 2d 818 (Fla. 1977)
- State v. Wilcox, 351 So. 2d 89 (Fla. 2d DCA 1977)
- Culbertson v. State, 306 So. 2d 142 (Fla. 2d DCA 1975)
- Jones v. State, 289 So. 2d 385 (Fla. 1974)
- Mask v. State, 289 So. 2d 385 (Fla. 1973)
- Carmella Jean Trudeau v. State, 348 So. 2d 66 (Fla. 4th DCA 1977)