Harden v. State, T--347
| Decision Date | 05 March 1974 |
| Docket Number | No. T--347,T--347 |
| Citation | 290 So.2d 551 |
| Parties | Robert Cleveland HARDEN, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Louis O. Frost, Jr., Public Defender; and James O. Brecher, Asst. Public Defender, for appellant.
Robert L. Shevin, Atty. Gen., and Carolyn Snurkowski, Asst. Atty. Gen., for appellee.
We have for review a sentence imposed by the trial judge without first receiving and considering recommendations of the Parole Commission after a presentence investigation in accordance with Rule 3.710, Florida Rules of Criminal Procedure, 33 F.S.A.
After entering a plea of nolo contendere to the offense of forgery the defendant testified before the trial judge that he had served six months in 1967 for petit larceny, thirty days for shoplifting in 1967 and that he was fined $25.00 for possession of marijuana in 1970. The defendant further related to the court that he was on a methadone program in relation to a drug problem since returning from Vietnam. The judge then asked the defendant if he had any legal cause to show why sentence should not then be imposed to which appellant replied: 'No, sir.' A sentence of four years at hard labor was immediately imposed.
The sole point on this appeal is whether the sentence imposed was illegal because of the trial court's failure, before sentencing, to receive and consider the recommendations of the Parole Commission following a presentence investigation.
There is no suggestion that the defendant had any prior felony record and he was over 18 years of age.
The State urges that appellant's counsel had an opportunity to request a presentence investigation and an opportunity to object to the sentencing without the court having first ordered a presentence investigation and that having failed to do so the defendant had now waived that right. While our sympathies are with that position, nevertheless, the rule is clear and unambiguous and appears to be to the contrary.
It is not our prerogative to pass upon the desirability of the rule nor the logic behind its adoption. We are not unaware of the burdens imposed by the rule upon the harried trial judge, over-worked Parole Commission, and an over-burdened taxpaying public which must bear the brunt of the ultimate expense of all; but those are not the issues before us.
The rule in question clearly and specifically and mandatorily provides that:
'No sentence or sentences other than probation Shall be imposed on any defendant found guilty of a First felony offense or found guilty of a felony while under the age of 18 years, Until after such investigation has first been made and The recommendations of the commission received and considered by the sentencing judge.' (Emphasis added.)
...
To continue reading
Request your trial
-
Hargrave v. State
...order a presentence investigation report in all cases where a defendant has not previously been convicted of a felony. Harden v. State, 290 So.2d 551 (Fla. 1st DCA 1974); Mitchum v. State, 292 So.2d 620 (Fla. 1st DCA 1974); Still v. State, 296 So.2d 67 (Fla. 1st DCA 1974); Nordone v. State,......
-
Moore v. State, 1D99-4322.
...investigation and an opportunity to object to the sentencing without ... investigation ... [but] failed to do so." Harden v. State, 290 So.2d 551, 551 (Fla. 1st DCA 1974); see Wilkerson v. State, 583 So.2d 428, 428-429 (Fla. 1st DCA 1991). See also Barfield v. State, 524 So.2d 733, 733 (Fla......
-
Guzman v. State
...and an opportunity to object to the sentencing without the court having first ordered a presentence investigation." Harden v. State , 290 So. 2d 551, 551 (Fla. 1st DCA 1974).Similarly, in White v. State , 271 So. 3d 1023, 1026 (Fla. 4th DCA 2019), we held that the defendant was entitled to ......
-
Kurlin v. State, U-154
...citing Rule 3.710 RCrP and two recent opinions of this court, Mitchum v. State, Fla.App.1st 1974, 292 So.2d 620 and Harden v. State, Fla.App.1st 1974, 290 So.2d 551. Regarding this point, when raised at the time of sentencing the trial judge 'He does have a right to it. But if he had wanted......