CHARLES R. CAPLINGER, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Defendant Caplinger appeals his conviction for robbery and life sentence. The court affirms his conviction but reverses his sentence, holding that the substituted judge who imposed sentence must be adequately informed of the case before sentencing, not merely through counsel's statements.
The court held that although a substituted judge may impose sentence, she must thoroughly familiarize herself with the case beforehand. Relying solely on counsel's statements without the presentence investigation or trial record is insufficient. The conviction is affirmed but the sentence is reversed and remanded for re-sentencing. The ineffective assistance claim fails because defendant was not denied a fair trial.
[1] A conviction obtained by incompetent counsel requires a showing that the trial was a farce, sham, or mockery.
[2] The amount of time a public defender spends with a defendant does not, by itself, establish ineffective counsel.
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Join FLexlaw to unlock all legal intelligence“In order to prove that a conviction was obtained by virtue of incompetent counsel an accused must show that his trial was a farce, sham or mockery.”
Establishes the high standard defendant must meet to prove ineffective assistance of counsel on appeal.
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Join FLexlaw to unlock all legal intelligenceCaplinger was tried before Judge Everett Dudley, who found him guilty of robbery and deferred sentencing pending a presentence investigation. Judge El…
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This is an appeal taken by defendant, Charles R. Caplinger, from a judgment based on a jury verdict finding him guilty of robbery and a life sentence imposed by the court. Defendant was represented by the public defender and trial was held before Judge Everett Dudley who adjudicated defendant guilty as charged but deferred sentencing until a presentence investigation could be conducted. Subsequently, Judge Ellen Morphonios Rowe was substituted for Judge Dudley and her only function in the cause was to sentence defendant. At the time of sentencing Judge Rowe relied solely upon the statements of counsel to become informed with the facts of the case. Defendant was sentenced to life imprisonment and this appeal ensued.
Defendant’s initial argument on appeal urges error at the trial due to alleged ineffectual counsel. Defendant states he was prejudiced and denied due process because the public defender was totally unprepared for trial, sufficient time was not spent with defendant in the preparation for trial and that the resultant defense was totally ineffective. A review of the record discloses that defendant was initially represented by an attorney in the public defender’s office who prepared the case for trial. Due to a conflict, however, a second public defender was assigned the case prior to trial. The second public defender had the benefit of the first attorney’s preparation and nothing in the record shows that he was unprepared for trial.
In order to prove that a conviction was obtained by virtue of incompetent counsel an accused must show that his trial was a farce, sham or mockery. Hawkins v. State, Fla.App. 1966, 184 So.2d 486; Simpson v. State, Fla.App.1964, 164 So.2d 224. A trial will not be viewed as a sham or mockery on the basis of the time the public defender spent with defendant, State v. Barton, Fla.1967, 194 So.2d 241; Byrd v. State, Fla.App.1971, 243 So.2d 1; Williams v. State, Fla.App.1968, 215 So.2d 617, nor will counsel be viewed as incompetent because he exercised his personal judgment and did not call a certain witness on behalf of the defense. Fuller v. Wainwright, Fla. 1970, 238 So.2d 65; Thomas v. State, Fla.App.1966, 190 So.2d 361. Accordingly, defendant’s first argument must fail.
The final question raised on appeal concerns the validity of the sentence imposed by the substituted judge. It is permissible to allow a judge who did not preside in the trial to pass sentence upon the accused. Anderson v. State, 115 Fla. 477, 155 So. 726 (1934); Ex Parte Williams, 26 Fla. 310, 8 So. 425 (1890); United States v. Bakewell, 430 F.2d 721 (5th Cir. 1970), cert. denied 400 U.S. 964, 91 S.Ct. 366, 27 L.Ed. 2d 384 (1970). However, a prerequisite exists which requires the substitute judge to protect the rights of a defendant by thoroughly familiarizing himself with the case before proceeding to the matter of sentencing. Bennett v. United States, 285 F.2d 567 (5th Cir. 1960).
In the case sub judice the substitute judge was unfamiliar with defendant’s case before sentencing and she is precluded from sentencing defendant before she becomes adequately informed. The judge relied solely upon statements of counsel to become informed on the case and had neither the benefit of the presentence investigation ordered by the presiding trial judge nor the record of the trial before her when she passed sentence upon defendant. This is an insufficient basis to determine defendant’s sentence, therefore, the sentence imposed is invalid and will be reversed.
For the reasons stated above, the judgment hereunder review is affirmed and the sentence is reversed with directions for re-sentencing by a different judge.
*782Affirmed in part and reversed in part with directions.
(concurring specially).
At the time this case came on for sentencing, it was not necessary for the trial judge to avail himself of a pre-sentence report, but when the original trial judge had directed the preparation of a pre-sentence investigation it should have been examined by the successor judge. It is noted that in the new Criminal Rules of Procedure [Rule 3.710], 33 F.S.A., which becomes effective on February 1, 1973, in all cases where a court has discretion as to what sentence may be imposed a trial judge will be required to obtain a pre-sentence investigation before sentencing a convicted defendant, if it is a first offense or if the defendant is under eighteen (18) years of age.
BARKDULL, Chief Judge
(concurring specially).
At the time this case came on for sentencing, it was not necessary for the trial judge to avail himself of a pre-sentence report, but when the original trial judge had directed the preparation of a pre-sentence investigation it should have been examined by the successor judge. It is noted that in the new Criminal Rules of Procedure [Rule 3.710], 33 F.S.A., which becomes effective on February 1, 1973, in all cases where a court has discretion as to what sentence may be imposed a trial judge will be required to obtain a pre-sentence investigation before sentencing a convicted defendant, if it is a first offense or if the defendant is under eighteen (18) years of age.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
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Peters v. State, 128 So. 3d 832 (Fla. 4th DCA 2013)…eversing where the successor judge “declined to familiarize [him]self with the case” and instead sentenced the defendant in conformity with the previous judge’s “intension] to impose the most stringent [*841] sentence possible”); Caplinger v. State, 271 So. 2d 780, 781 (Fla. 3d DCA 1973) (reversing where the successor judge “relied solely upon statements of counsel to become informed on the case”). In this case, Peters relies on certain of Judge McCann’s statements4 at the hearing to suggest that he improper…
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Aleño Santana Madrigal v. State, 683 So. 2d 1093 (Fla. 4th DCA 1996)…ion of offense), affd, 365 So. 2d 701, 703 n. 4 (Fla.1978), and Law-ley v. State, 377 So. 2d 824 (Fla. 1st DCA 1979) (sufficient for substitute sentencing judge to read PSI and discuss case with judge who presided at trial), with Caplinger v. State, 271 So. 2d 780 (Fla. 3d DCA 1973) (insufficient where successor sentencing judge did not use PSI or record, but relied solely on counsel’s statements to become familiar with facts of case). However, where a defendant is sentenced by a judge other than the one tha…
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Spencer v. State, 611 So. 2d 16 (Fla. 3d DCA 1992)…he shall have acquainted himself with what transpired at the trial.... Under the Rule and the decisional law, the sentence must reflect the independent decision of the successor judge. See id.; Moore v. State, 378 So. 2d at 793; Caplinger v. State, 271 So. 2d 780, 781 (Fla. 3d DCA 1973). Under Caplinger, the successor judge may receive a proffer or statement of proceedings covering so much of the trial proceedings as the parties contend will be relevant for the trial court to make the sentencing decision,1…
Previewing 3 of 10 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited (14 total)
- Simpson v. State, 164 So. 2d 224 (Fla. 3d DCA 1964)
- Bonanno v. United States, 400 U.S. 964 (U.S. 1970)
- Samadjopoulos v. Nat'l W. Life Ins. Co., 400 U.S. 964 (U.S. 1970)
- State v. Barton, 194 So. 2d 241 (Fla. 1967)
- Lyman Moody Bennett v. United States, 285 F.2d 567 (5th Cir. 1960)
- Fuller v. Wainwright, 238 So. 2d 65 (Fla. 1970)
- United States v. Bakewell, 430 F.2d 721 (5th Cir. 1970)
- Ex-Parte Ephraim Williams, 26 Fla. 310 (Fla. 1890)
- Hawkins v. State, 184 So. 2d 486 (Fla. 1st DCA 1966)
- Williams v. State, 215 So. 2d 617 (Fla. 3d DCA 1968)