MICHAEL CULBERTSON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that the trial court erred in denying the appellant an opportunity to present evidence in mitigation prior to sentencing.
Appellant was charged with assault with intent to commit rape and found guilty of the lesser included offense of assault and battery. The trial court …
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SCHEB, Judge.
The appellant, Michael J. Culbertson, was charged with assault with intent to commit rape. A jury trial resulted in a verdict of guilty of the lesser included offense of assault and battery whereupon the trial judge immediately sentenced the appellant to serve one year in the county jail with credit for time previously served while awaiting trial.
The appellant asserts two points on appeal :
1. The trial court erred in failing to instruct the jury concerning impeachment of witnesses; and
2. The trial court erred in denying the appellant an opportunity to present evidence in mitigation prior to sentence.
Since the testimony of the prosecu-trix revealed some conflicts it would have been appropriate for the court to have instructed the jury as requested; however, viewing the instructions as a whole and noting that there was sufficient evidence corroborating the prosecutrix’s testimony as related to the offense of assault and battery we find that error, if any, in failing to give the requested instruction was harmless.
Notwithstanding a timely request by appellant’s counsel for an opportunity to present matters in mitigation such request was denied by the trial court. Rule 3.-720(b) RCrP makes it mandatory for the court to “entertain submissions and evidence by the parties which are relevant to the sentence.” The language of the rule is mandatory. Mask v. State, Fla. 1973, 289 So. 2d 385.
This case is remanded for resentencing of the appellant after first affording the appellant an opportunity to offer matters in mitigation as mandated by Rule 3.720(b) RCrP; otherwise the judgment of the trial court is affirmed.
HOBSON, A. C. J., and GRIMES, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (11 total)
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Miller v. State, 435 So. 2d 258 (Fla. 3d DCA 1983)…h are relevant to the sentence. Cross v. State, 378 So. 2d 114 (Fla. 5th DCA 1980); Mason v. State, 366 So. 2d 171 (Fla. 3d DCA 1979); 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). If a trial court refuses to allow a defendant to present matters in mitigation, the cause must be remanded for a sentencing hearing and re-sentencing. However, this court has interpreted Rule 3.720(b) as requiring only that a def…
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State v. Hohl, 431 So. 2d 707 (Fla. 2d DCA 1983)…s 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 cour…
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Hill v. State, 246 So. 3d 392 (Fla. 4th DCA 2018)
Previewing 3 of 11 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Jones v. State, 289 So. 2d 385 (Fla. 1974)
- Mask v. State, 289 So. 2d 385 (Fla. 1973)