WILLIAM A. BARBER, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
Barber challenged his revoked probation sentence, arguing that the trial court erred by failing to order a presentence investigation before sentencing him to three years in prison for violating probation. The Florida appellate court held that Rule 3.710 does not require a presentence investigation when sentencing a defendant for probation violation, even if the original offense was a first felony.
The trial court did not err in failing to order a presentence investigation. Rule 3.710's exception for probation cases applies not only when probation is initially imposed but also to any sentence entered due to violation of that probation, even if the underlying offense was a first felony.
[1] A presentence investigation is not required before imposing a sentence after a defendant violates probation, even if the defendant was a first felony offender at the time…
[2] A rule requiring a presentence investigation before imposing a sentence other than probation applies to sentences imposed after a probation violation, not just initial se…
Previewing 2 of 3 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“No sentence or sentences other than probation shall be imposed on any defendant found guilty of a first felony offense or found guilty of a felony while under the age of 18 years, until after such investigation has first been made and the recommendations of the commission received and considered by the sentencing judge.”
This quote from Rule 3.710 sets forth the general requirement for presentence investigations, which the court held does not apply to probation violation sentencing.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceBarber pleaded guilty to unlawful possession of cocaine and heroin, and adjudication of guilt was withheld with probation imposed for three years. Sho…
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PEARSON, Judge.
The appellant pleaded guilty to an information which charged him with the unlawful possession of cocaine and heroin. Adjudication of guilty was withheld and the court placed the appellant on probation for three years. Shortly thereafter, he was arrested on a second charge for possession of narcotics. An affidavit' of violation of probation was filed and a hearing was had before the court. At the time of the hearing, the appellant had not been found guilty of a second violation. Appellant was found guilty of violating his probation, was adjudged guilty of the original offense and his probation was revoked. He was sentenced to three years in the state penitentiary.
On this appeal, the sole question presented is whether or not the trial court erred in failing to order a presentence investigation which appellant urges is required under Rule 3.710, CrPR, 33 F.S.A. The rule is as follows:
“Rule 3.710 Presentence Report
“In all cases in which the court has discretion as to what sentence may be imposed, the court may refer the case to the probation and parole commission for investigation and recommendation. No sentence or sentences other than probation shall be imposed on any defendant found guilty of a first felony offense or found guilty of a felony while under the age of 18 years, until after such investigation has first been made and the recommendations of the commission received and considered by the sentencing judge.”
Appellant urges that as far as this record reveals, he is a first offender. He urges that the rule requires a presentence investigation even though probation has intervened. We think that appellant’s position is not in keeping with a reasonable interpretation of the rule and we therefore affirm.
The rule itself makes an exception in cases in which probation is imposed, but appellant suggests that the exception applies only to the time when the defendant is placed on probation. We hold that the exception applies not only for the sentence placing the defendant on probation but also applies to any sentence which is later entered because of a violation of that probation.
Probation is usually granted on the basis of a presentence report which suggests that a given defendant is not likely to repeat his criminal conduct. State ex rel. Roberts v. Cochran, Fla.1962, 140 So. 2d 597. By the violation of probation, the defendant has proved himself unworthy of leniency by the court. It would be unreasonable to hold that a presentence investigation is not necessary when a defendant is placed on probation but is necessary when the defendant is charged only with having violated the court’s own order giving him the benefit of probation. Defendant, having been granted the privilege of probation and having abused it, may not require further consideration from the court under the rule stated. Cf. Clarke v. State, Fla.App.1970, 230 So. 2d 486.
Affirmed.
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Barber v. State, 293 So. 2d 710 (Fla. 1974)…DEKLE, Justice. Jurisdiction vests pursuant to Art. V, § 3(b)(3), Fla.Const., F.S.A., the district court of appeal having certified its opinion, reported at 288 So. 2d 281 (Fla.App.3d 1974), as passing on a question of great public interest, and the parties having petitioned this Court for review by certiorari. Hoffman v. Jones, 280 So. 2d 431 (Fla.1973). On March 27, 1973, petitioner pleaded guilty to possession of…
Authorities Cited
- State ex rel. Lewis Roberts v. Cochran, 140 So. 2d 597 (Fla. 1962)
- Fredi Herbert Clarke v. State, 230 So. 2d 486 (Fla. 3d DCA 1970)