Berezovsky v. State
| Citation | 350 So.2d 80 |
| Decision Date | 15 September 1977 |
| Docket Number | No. 50198,50198 |
| Parties | Jiri BEREZOVSKY, Petitioner, v. STATE of Florida, Respondent. |
| Court | United States State Supreme Court of Florida |
Bennett H. Brummer, Public Defender, and Karen M. Gottlieb, Asst. Public Defender, Miami, for petitioner.
Robert L. Shevin, Atty. Gen., and Margarita Esquiroz, Asst. Atty. Gen., Miami, for respondent.
We have for review an order of the Third District Court of Appeal reported at 335 So.2d 592 which allegedly conflicts with our decision in Roberts v. State, 335 So.2d 285 (Fla.1976). We have jurisdiction pursuant to Article V, Section 3(b)(3), Florida Constitution.
Petitioner was tried and convicted on a charge of rape and was sentenced to thirty years in the state penitentiary. Petitioner urges reversal on the grounds that the trial judge failed to exercise his judicial discretion in sentencing by failing to consider possible sentencing alternatives provided for in Section 948.01, Florida Statutes (1975). Section 948.01, Florida Statutes, provides in pertinent part as follows:
Any court of the state having original jurisdiction of criminal actions, where the defendant in a criminal case has been found guilty . . . except for an offense punishable by death, may . . . either with or without an adjudication of the guilt of the defendant, hear and determine the question of the probation of such defendant.
It is petitioner's position that the trial judge determined that Section 775.082(3)(a), Florida Statutes (1975), requires a mandatory minimum sentence of thirty years and that the sentencing alternatives outlined in Section 948.01, Florida Statutes, are inapplicable. We have carefully reviewed the record and find it sufficient to show that the judge was unclear as to whether probation was possible under the circumstances of the case.
In Roberts v. State, 335 So.2d 285 (Fla.1976), we specifically held that probation is an alternative open to the sentencing judge. We there, at 289, said:
It is sufficient to note that Section 959.115, Florida Statutes, expressly provides for sentencing alternatives applicable to the instant case. This section, along with the general probation statute, is controlling and so the 30-year prison term for rape established by Section 775.082(3)(a), Florida Statutes, is not a "mandatory minimum" sentence in the sense for which the State contends. If on retrial Roberts is found guilty a subject about which we express no opinion the trial court should consider the alternatives posed by Section 959.115 as well as the sentencing provisions of Section 775.082(3)(a) in determining appellant's future.
(footnotes omitted)
The trial judge, at the time of sentencing in this case, did not have the benefit of the Roberts decision.
The District Court has reviewed the sufficiency of the evidence in this case and found that the jury's verdict is supported by...
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Shrader v. State
...determine." (emphasis added) (citing Berezovsky v. State, 335 So. 2d 592, 593 (Fla. 3d DCA 1976), rev'd in part on other grounds, 350 So. 2d 80 (Fla. 1977) )). Our court has explained that because mental intent is seldom proved by direct evidence, "the absence of direct proof on the questio......
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McIlwain v. State
...Paramore v. State, 238 So.2d 604 (Fla.1970); Berezovsky v. State, 335 So.2d 592 (Fla. 3d DCA 1976), aff'd in part and rev'd in part, 350 So.2d 80 (Fla.1977), on remand, 351 So.2d 764 (Fla. 3d DCA); O'Bryan v. State, 324 So.2d 713 (Fla. 1st DCA), cert. denied, 336 So.2d 1184 (Fla.1976).4 Tru......
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...Thomas v. State, 167 So.2d 309 (Fla.1964); Berezovsky v. State, 335 So.2d 592 (Fla. 3d DCA 1976), aff'd in part, rev'd in part, 350 So.2d 80 (Fla.1977). These cases have been discussed in some detail by the district court below, and no useful purpose would be served here by repeating that d......
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Shrader v. State
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