PETER A. LEVIN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Peter Levin appeals his conviction and sentence for violating Florida's Child Molester Law on two grounds: denial of access to the confidential portions of his presentence investigation report and refusal to credit him with time spent at Florida State Hospital. The court affirmed, holding that disclosure of non-factual confidential PSI materials is discretionary in non-capital cases and that credit for time served is limited by statute to county jail time.
Due process does not require disclosure of confidential PSI materials in non-capital cases; such disclosure is discretionary under Florida Rule of Criminal Procedure 3.713. Time spent in the Florida State Hospital does not qualify for sentence credit because the statute limiting credit mandates credit only for time spent in county jail prior to sentencing.
[1] Revelation of the confidential portion of a presentence investigation report is discretionary in non-capital cases.
[2] Due process requires revelation of confidential portions of a presentence investigation report to a defendant if it is the basis, at least in part, for a death sentence.
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Join FLexlaw to unlock all legal intelligence“revelation of the confidential portion of a PSI report which is not factual or which contains no physical or mental evaluation material is discretionary”
Establishes the court's ruling that disclosure of non-factual confidential PSI materials is discretionary in non-capital cases
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Join FLexlaw to unlock all legal intelligenceLevin pleaded guilty to violating the Child Molester Law. His sentence was withheld pending a six-month evaluation at Florida State Hospital. After hi…
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DOWNEY, Judge.
Appellant seeks reversal of his judgment of conviction and sentence on two theories: (a) the refusal of the trial court to allow appellant to view the confidential portion of the presentence investigation report, and (b) the refusal of the trial court to give appellant credit on his sentence for time spent in the Florida State Hospital prior to sentencing. We affirm.
I. Fla.R.Crim.P. 3.713 and the Committee Note thereunder make it clear that revelation of the confidential portion of a PSI report which is not factual or which contains no physical or mental evaluation material is discretionary. This court in Campbell v. State, 342 So. 2d 1010 (Fla. 4th DCA 1977), and the First District Court of Appeal in McCormack v. State, 332 So. 2d 117 (Fla. 1st DCA 1976), have so construed that rule. The Supreme Court of the United States in Gardner v. Florida, 430 U.S. 349, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977), in a plurality decision, stated that due process required revelation to a defendant of the confidential portions of the PSI report if it is the basis, at least in part, for a death sentence. However, in disposing of the State’s argument that the confidential portions of the PSI report should be kept confidential because divulging those portions thereof will occasionally disrupt the process of rehabilitation, the court pointed out:
“The argument, if valid, would hardly justify withholding the report from defense counsel. Moreover, whatever force that argument may have in noncapital cases, it has absolutely no merit in a case in which the judge has decided to sentence the defendant to death. Indeed, the extinction of all possibility of rehabilitation is one of the aspects of the death sentence that makes it different in kind from any other sentence a State may legitimately impose.” 430 U.S. at 360, 97 S.Ct. at 1206.
Thus, until the Supreme Court of Florida or the Supreme Court of the United States holds that the confidential portions of a PSI report be revealed to a defendant in a non-capital case, we are constrained to follow our previous ruling on this question.
II. Appellant was charged with violating the Child Molester Law. After pleading guilty, sentence was withheld and appellant was admitted to the Florida State Hospital for approximately six months. Thereafter, he was sentenced to three years imprisonment with credit for three hundred days spent in the County Jail. However, appellant complains because the trial court did not also give him credit for the time he spent in the Florida State Hospital. This complaint is devoid of merit because the statute mandating credit for time served specifically provides for “credit for all of the time he spent in the county jail before sentence.” Section 921.161, Florida Statutes (1975).
In view of the foregoing the judgment and sentence appealed from are affirmed.
AFFIRMED.
MAGER, C. J., and ANSTEAD, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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McCLENDON v. State, 589 So. 2d 352 (Fla. 1st DCA 1991)…of the PSI which may have influenced the trial court to impose the death penalty. By its express terms, however, Gardner is limited to death penalty cases and at least one Florida court has refused to apply it in a non-capital case. Levin v. State, 348 So. 2d 1189 (Fla. 4th DCA 1977). Other authorities are in agreement. See generally, Spivey, Annotation, Defendant’s Right to Disclosure of Presentence Report, 40 A.L.R.3d 681 (1971). Thus, except in capital cases, there is apparently no constitutional or other…
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Durant v. State, 364 So. 2d 833 (Fla. 2d DCA 1978)…PER CURIAM. Affirmed. See Levin v. State, 348 So. 2d 1189 (Fla. 4th DCA 1977). GRIMES, C. J., and BOARDMAN and SCHEB, JJ., concur.…
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Turner v. State, 395 So. 2d 1242 (Fla. 1st DCA 1981)…rict Court of Appeal 1) but rather prefer to align ourselves with the Fourth District Court of Appeal on this point as reflected by its decisions in Pennington v. State, 4th DCA, Case No. 78-1302, Opinion filed January 16, 1980,2 and Levin v. State, 348 So. 2d 1189 (Fla. 4th DCA 1977). Credit for punishment already exacted is mandated by the Fifth Amendment to the U. S. Constitution3 and by statute.4 But as Justice England pointed out in Dorfman v. State, 351 So. 2d 954 (Fla.1977), there is an obvious differe…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Gardner v. Florida, 430 U.S. 349 (U.S. 1977)
- Campbell v. State, 342 So. 2d 1010 (Fla. 4th DCA 1977)
- McCORMACK v. State, 332 So. 2d 117 (Fla. 1st DCA 1976)