CLARENCE WILKERSON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Clarence Wilkerson appealed his conviction for lewd and lascivious act on a child under 16 and resisting arrest. The court affirmed the conviction but vacated the sentence due to the trial court's failure to obtain and consider a pre-sentence investigation before imposing a non-probation sentence on a first felony offender, as required by Florida Rules of Criminal Procedure.
The trial court did not err in admitting the similar fact evidence. However, the court erred in imposing a sentence without first obtaining and considering a pre-sentence investigation for a first felony offender, and this error cannot be waived by the defendant's failure to raise it at trial.
[1] Similar fact evidence is admissible if it is relevant to an issue in the case and its probative value outweighs its prejudicial effect.
[2] A defendant's failure to object to the lack of a pre-sentence investigation report at the time of sentencing does not constitute a waiver of the right to have the report…
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Join FLexlaw to unlock all legal intelligence“[n]o sentence or sentences other than probation shall be imposed on any defendant found guilty of a first felony offense ... until after [a pre-sentence] investigation has first been made and the recommendations of the Department of Corrections received and considered by the sentencing judge.”
Statement of the mandatory pre-sentence investigation requirement under Rule 3.710 that the trial court violated.
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Join FLexlaw to unlock all legal intelligenceWilkerson was charged with lewd and lascivious act on a child under 16 based on an incident where he allegedly awakened his daughter by rubbing his ha…
The full statement of facts, procedural history, and disposition for this case are member content.
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JOANOS, Chief Judge.
Clarence Wilkerson has appealed his conviction and sentence for lewd and lascivious act on a child under 16, and for resisting arrest without violence. We affirm the conviction, but vacate the sentence and remand for resentencing after preparation and consideration of a pre-sentence investigation.
The charge of lewd and lascivious act on a child under 16 was based on an incident where allegedly Wilkerson awakened his daughter by rubbing his hand on her private parts. Wilkerson alleges first that the trial court erred in admitting certain similar fact evidence, to wit: the testimony of the victim’s sibling to an incident a year earlier, where she awoke to find Wilkerson unfastening her pajama bottoms. The trial court did not err in the admission of this testimony. See Heuring v. State, 513 So. 2d 122 (Fla.1987); Calloway v. State, 520 So. 2d 665 (Fla. 1st DCA), rev. denied 529 So. 2d 693 (Fla.1988); Montgomery v. State, 564 So. 2d 604 (Fla. 3d DCA 1990).
Wilkerson’s second allegation of error is premised on the provision of Rule 3.710, Florida Rules of Criminal Procedure, that “[n]o sentence or sentences other than probation shall be imposed on any defendant found guilty of a first felony offense ... until after [a pre-sentence] investigation has first been made and the recommendations of the Department of Corrections received and considered by the sentencing judge.” The state concedes that this was Wilkerson’s first felony offense, and that the required investigation was not obtained or considered, but maintains that Wilkerson waived the error by failing to bring it to the attention of the sentencing court. This argument was rejected in Harden v. State, 290 So. 2d 551 (Fla. 1st DCA 1974). See also Beverly v. State, 330 So. 2d 527 (Fla. 1st DCA 1976); Pegues v. State, 361 So. 2d 433 (Fla. 1st DCA 1978), cert. denied 368 So. 2d 1372 (Fla.1979); Watson v. State, 371 So. 2d 237 (Fla. 1st DCA 1979).
Accordingly, while Wilkerson’s conviction is affirmed, his sentence is vacated. We remand for resentencing after preparation and consideration of a pre-sentence investigation, as required by Rule 3.710, Florida Rules of Criminal Procedure.
ERVIN and SHIVERS, JJ., concur.
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Hardwick v. State, 630 So. 2d 1212 (Fla. 5th DCA 1994)…hat his felony convictions in the instant cause were his first felony offenses. The appellant’s failure to formally object at trial does not constitute a waiver of this error. Spencer v. State, 608 So. 2d 545 (Fla. 4th DCA 1992); Wilkerson v. State, 583 So. 2d 428 (Fla. 1st DCA 1991). Accordingly, we affirm the appellant’s aggravated battery conviction but reverse the sentences and remand for resentencing. DAUKSCH and GOSHORN, JJ., concur. . In his initial motion for judgment of acquittal, defense counsel…
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Moore v. State, 768 So. 2d 1140 (Fla. 1st DCA 2000)…“counsel had an opportunity to request a presentence investigation and an opportunity to object to the sentencing without ... investigation ... [but] failed to do so.” Harden v. State, 290 So. 2d 551, 551 (Fla. 1st DCA 1974); see Wilkerson v. State, 583 So. 2d 428, 428-429 (Fla. 1st DCA 1991). See also Barfield v. State, 524 So. 2d 733, 733 (Fla. 1st DCA 1988)(revers-ing denial of a motion for post-conviction relief with directions that the trial court “specifically address” whether “a presen-tence investigat…
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Adkins v. State, 605 So. 2d 915 (Fla. 1st DCA 1992)…(Fla. 5th DCA 1989), rev. denied, 560 So. 2d 232 (Fla.1990). See also: Smith v. State, 538 So. 2d 66 (Fla. 1st DCA 1989); Grant v. State, 577 So. 2d 625 (Fla. 1st DCA 1991); Lazarowicz v. State, 561 So. 2d 392 (Fla. 3d DCA 1990); Wilkerson v. State, 583 So. 2d 428 (Fla. 1st DCA 1991); Padgett v. State, 551 So. 2d 1259 (Fla. 5th DCA 1989). Clearly, then, in such cases as the one at hand, where identity is not an issue, the victim’s credibility is of paramount importance, especially when that credibility has be…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. Fundora, 513 So. 2d 122 (Fla. 1987)
- Frederick A.R. Heuring v. State, 513 So. 2d 122 (Fla. 1987)
- Calloway v. State, 520 So. 2d 665 (Fla. 1st DCA 1988)
- Harden v. State, 290 So. 2d 551 (Fla. 1st DCA 1974)
- Montgomery v. State, 564 So. 2d 604 (Fla. 3d DCA 1990)
- Beverly v. State, 330 So. 2d 527 (Fla. 1st DCA 1976)
- Browne v. Monumental Props. OF Fla., Inc., 361 So. 2d 433 (Fla. 4th DCA 1978)
- Pegues v. State, 361 So. 2d 433 (Fla. 1st DCA 1978)
- Palmer v. State, 371 So. 2d 237 (Fla. 1st DCA 1979)