HAROLD TUTHILL, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Appellant Tuthill was convicted and sentenced to 15 years in the state penitentiary, but the trial court improperly foreclosed his opportunity to present mitigating circumstances relevant to sentencing. The appellate court reversed the sentencing and remanded for resentencing while affirming the conviction.
The trial court violated the defendant's right to be heard on sentencing by preventing him from presenting mitigating circumstances. Because the court foreclosed the presentation of matters relevant to the sentence, the sentencing must be vacated and the case remanded for resentencing.
[1] A defendant must be afforded an opportunity to be heard on the question of the severity of the sentence to be imposed.
[2] A court forecloses the presentation of matters relevant to sentencing when it prevents the defendant from offering arguments or explanations.
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Join FLexlaw to unlock all legal intelligence“The only thing I want to know, is there any reason why I shouldn't give you the maximum sentence which I have just done? I don't want to hear your arguments.”
The judge's explicit foreclosure of the defendant's right to present mitigating arguments at sentencing
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Join FLexlaw to unlock all legal intelligenceTuthill was convicted of a crime involving harm to children. At sentencing, the trial court asked if Tuthill had anything to say before sentence was i…
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BASKIN, Judge.
The record reveals that appellant Tuthill was not afforded an opportunity to be heard on the question of the severity of the sentence to be imposed. The transcript discloses the following colloquy:
THE COURT: All right, Mr. Tuthill, is there anything you care to say before I impose sentence? Anything you want to say before I sentence you?
THE DEFENDANT: On probation?
THE COURT: Yes.
MR. DIEGUEZ: He didn’t violate probation, Your Honor. THE COURT: As far as I’m concerned, Mr. Dieguez, I am shocked. I am outraged. These youngsters, you have scarred them for the rest of their lives, Mr. Tuthill. I put you on proba tion. You violated probation. I find you guilty. I adjudicate you guilty and I am sentencing you to 15 years in the State Penitentiary.
THE DEFENDANT: You asked me if I could say something and I haven’t, Your Honor. THE COURT: All right.
THE DEFENDANT: I couldn’t possibly have violated probation.
THE COURT: I have heard that. The only thing I want to know, is there any reason why I shouldn’t give you the maximum sentence which I have just done? I don’t want to hear your arguments. That’s for an Appellate Court. When they review the testimony, they will determine whether or not this Court is in error. I have heard testimony that offended me, that shocked my conscience. As far as I am concerned, you’re a chicken hawk. You prey on little kids and you got caught and you don’t deserve to be on the street.
Because the court foreclosed the presentation of matters “relevant to the sentence,” State v. Scott, 439 So. 2d 219 (Fla.1983); Fla.R.Crim.P. 3.720(b), the cause is remanded solely for resentencing. The remaining point lacks merit.
Affirmed in part; reversed in part; remanded.
BARKDULL, Judge,
dissenting.
I respectfully dissent. The quoted portion of the sentencing hearing set forth in the majority opinion clearly demonstrates that the defendant failed to avail himself of the opportunity to be heard on the question of the sentence. He wanted to dispute the probation violation and refused to take advantage of the opportunity to speak. He should not now be heard to complain.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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State v. Tuthill, 545 So. 2d 850 (Fla. 1989)…minor. The trial court revoked Tuthill’s probation and sentenced him to fifteen years in prison, and the state entered a nolle prosequi on the new substantive charge. The third district court remanded for a new sentencing hearing, Tuthill v. State, 478 So. 2d 409 (Fla.1985), and on resentenc-ing the trial court again sentenced Tuthill to fifteen years in prison, using the probation and the violation of probation as the principle reasons for departure. The third district reversed the sentence again, holding t…
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Tuthill v. State, 518 So. 2d 1300 (Fla. 3d DCA 1987)…substantive offense that formed the basis of the probation violation. In the ensuing appeal, this court ruled that Tuthill “was not afforded an opportunity to be heard on the question of the severity of the sentence to be imposed.” Tuthill v. State, 478 So. 2d 409, 409 (Fla. 3d DCA 1985), review denied, 484 So. 2d 10 (Fla.1986). Although we affirmed the trial court’s revocation of probation, we remanded the cause to the trial court for resentencing. Tut-hill. On remand, the trial judge recused himself from t…1 / 2
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Pastor v. State, 498 So. 2d 962 (Fla. 4th DCA 1986)…s that Pastor had waived his right to a presentence investigation report. The trial court erred in foreclosing the presentation of matters relevant to the sentence. Fla.R.Crim.P. 3.720(b); State v. Scott, 439 So. 2d 219 (Fla.1983); Tuthill v. State, 478 So. 2d 409 (Fla. 3d DCA 1985), rev. denied, 484 So. 2d 10 (Fla.1986). For the foregoing reasons, Pastor’s conviction for drug trafficking is affirmed, and the sentence is reversed and the cause is remanded for resentencing consistent with the views expressed…
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- State v. Scott, 439 So. 2d 219 (Fla. 1983)