Gallucci v. State, 77-1213
| Decision Date | 21 March 1979 |
| Docket Number | No. 77-1213,77-1213 |
| Citation | 371 So.2d 148 |
| Parties | Ralph John GALLUCCI, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
John L. Sutton, Fort Lauderdale, for appellant.
Robert L. Shevin, Atty. Gen., Tallahassee, John D. Cecilian and Benedict P. Kuehne, Asst. Attys. Gen., West Palm Beach, for appellee.
This is an appeal from a judgment of conviction and sentence for receiving stolen property after a jury trial. Appellant has raised some fifteen issues on appeal, only one of which we believe has merit.
At the sentencing hearing, appellant's counsel called the trial court's attention to certain remarks of the prosecutor contained in the presentence investigation report which suggested that the appellant be sentenced to the maximum jail term because he had rejected a negotiated plea involving a one year jail term prior to trial. The prosecutor urged that once appellant had his jury trial: "He should not get a better deal from the judge, since he was found guilty." Appellant's counsel termed the prosecutor's remarks "vindictive" and urged the court to place appellant on probation. The court denied the request for probation and in the course thereof made the following remarks:
THE COURT: I am a little concerned that defense counsel argues to the Court that after a person has gone to trial that now he's got to the Court has got to be vindictive and sentence him to prison, as opposed to giving him probation.
Now it is true that the defendant has got to face the music once he goes to trial, because that's a sort of a necessity to prevent everybody from going to trial and then being placed on probation if they get convicted, or walking out the door scott free if they are not convicted.
There is some truth to the argument. On the other hand, I think that the proper way to look at the matter is that when a defendant is charged with a crime and is offered some negotiations by the State's attorney, that is admitting his guilt or pleading no contest to the charge, is a rehabilitative factor that the Court takes into consideration in making a determination of what the punishment should be.
So then the only other thing is that, since we have got some rehabilitation, what deterrent should be placed before the public as a basis for causing other people not to commit the same type of crime.
I don't think that there is any need for a judge, if a person can go to trial and then come in and then expect to go on probation as a result of being convicted by a jury, because we are going to try every single case that comes down the pike, if that is the way it is.
And if the appellate court doesn't like what I am saying, they can very well reverse me, but it is not my intention to try a case and then have the defendant come in and expect to be placed on probation, Unless it is very, very odd and weird circumstances. You can call it punishment for going to trial, if you want to. I don't look at it that way. (Emphasis added)
Sentencing is perhaps the most difficult of all of the trial court's duties. For many reasons, not the least of which is a recognition that a sentencing judge is in a unique position to decide what sentence is...
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State v. Kamana'o
...635 N.W.2d at 580 ("[A]n inference of lack of remorse may not be drawn from an accused's plea of not guilty."); Gallucci v. State, 371 So.2d 148, 150 (Fla.Dist.Ct.App.1979) ("[A] trial court may not impose a greater sentence on a defendant because such defendant avails himself of his consti......
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Alfonso-Roche v. State
...56, 58 (Fla. 2d DCA 1999).Reversals, however, occur only when the record reveals an improper sentencing motive. See Gallucci v. State, 371 So.2d 148 (Fla. 4th DCA 1979) ; Stephney v. State, 564 So.2d 1246 (Fla. 3d DCA 1990). The silent imposition of a trial penalty evades appellate review. ......
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State v. Kamana`o, No. 25271 (Haw. 12/3/2003), 25271
...635 N.W.2d at 580 ("[A]n inference of lack of remorse may not be drawn from an accused's plea of not guilty."); Gallucci v. State, 371 So.2d 148, 150 (Fla. Dist. Ct. App. 1979) ("[A] trial court may not impose a greater sentence on a defendant because such defendant avails himself of his co......
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City of Daytona Beach v. Del Percio
...punished for his exercise of the right to trial but may be punished for his lack of candor during the trial. Compare Gallucci v. State, 371 So.2d 148 (Fla. 4th DCA 1979), cert. denied, 383 In cases such as Gillman and Gallucci, the appellate court has remanded the case for a new sentencing ......