ROBERT ALLEN DAVENPORT, APPELLANT (DEFENDANT),
v.
STATE OF FLORIDA, APPELLEE (STATE)
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The trial court erred in imposing a sentence without a presentence investigation and recommendation for a defendant's first felony offense.
The record was silent as to whether the defendant had a previous felony offense. The trial court imposed a sentence without a presentence investigatio…
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MILLS, Judge.
The question raised by this appeal is whether the trial court erred in imposing a sentence on Davenport without the benefit of a presentence investigation and recommendation where the record does not show a previous felony offense. The trial court erred. Angel v. State, 305 So. 2d 283 (Fla.App.1st, 1974).
The record in this case is silent as to a previous felony offense. Rule 3.170, Florida Rules of Criminal Procedure, provides that no sentence shall be imposed on a defendant found guilty of a first felony offense until a presentence investigation and recommendation has been received and considered by the sentencing judge. As the trial court’s error was a mere defect in sentencing, reversal is not required.
This case is remanded with the following directions:
1. the trial court may hold a hearing at which it must be established that the defendant has been convicted previously of a felony, and if he has been convicted, reimpose the sentence, or
2. the trial court may vacate the sentence, then obtain a presentence investigation and recommendation, consider them, and resentence the defendant.
BOYER, C. J., and McCORD, J., concur.
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Lenson Hargrave v. State, 366 So. 2d 1 (Fla. 1978)…. 1st DCA 1974); Nordone v. State, 307 So. 2d 907 (Fla. 3rd DCA 1975); Lopes v. State, 309 So. 2d 591 (Fla. 2nd DCA 1975); Buckles v. State, 310 So. 2d 748 (Fla. 1st DCA 1975); Grubbs v. State, 311 So. 2d 411 (Fla. 2nd DCA 1975); Davenport v. State, 317 So. 2d 851 (Fla. 1st DCA 1975); Beverly v. State, 330 So. 2d 527 (Fla. 1st DCA 1976). The record shows that appellant had no prior felony convictions. He was thus entitled to the benefit of a presentence investigation. Relying on Thompson v. State, supra, the…
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DeOCA v. State, 326 So. 2d 453 (Fla. 4th DCA 1976)…in part, that no sentence shall be imposed upon a defendant found guilty of a first felony offense until a pre-sentence investigation and recommendation has been received and considered by the sentencing judge. Davenport v. State, Fla.App.1st, 1975, 317 So. 2d 851; Buckles v. State, Fla.App.1st, 1975, 310 So. 2d 748. Since the error was a defect in sentencing the judgment is affirmed, the sentence vacated and the cause is remanded with directions to conduct a pre-sen-tence investigation pursuant to Rule 3.710…
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Gerardo v. State, 383 So. 2d 1122 (Fla. 2d DCA 1980)…by striking it from the order. The order would then reflect fifteen years for manslaughter. Thus, in Poff, there was no increase in the sentence, only a correction of a clerical error in the designation of the offense. Similarly, in Baxley v. State, 317 So. 2d 851 (Fla. 1st DCA 1975), the appellate court remanded for a correction of the record where the judgment showed that the defendant had pleaded guilty to two counts of robbery when he actually pleaded no contest to a single count of robbery. No increase i…
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
- Tyre Andre Jermaine Angel v. State, 305 So. 2d 283 (Fla. 1st DCA 1974)