Hargis v. State, 83-585
| Decision Date | 21 June 1984 |
| Docket Number | No. 83-585,83-585 |
| Citation | 451 So.2d 551 |
| Parties | David Kim HARGIS, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
James B. Gibson, Public Defender, and Christopher S. Quarles, Asst. Public Defender, Daytona Beach, for appellant.
Jim Smith, Atty. Gen., Tallahassee, and Margene A. Roper, Asst. Atty. Gen., Daytona Beach, for appellee.
The appellant, Hargis, pled nolo contendere to violating his probation on two burglary charges. He appeals, first claiming his sentencing was violative of section 775.14, Florida Statutes (1983) and, second, contending that the probationary portion of a sentence violative of the Villery 1 case is "void" and therefore cannot be legally violated (even though Hargis expressly declined to seek vacation of the sentence via 3.850). These two assertions are wholly without merit.
The appellant also contends, however, that his sentencing hearing was defective because the trial court violated Florida Rule of Criminal Procedure 3.720, which provides in pertinent part:
As soon as practicable after the determination of guilt and after the examination of any presentence reports the sentencing court shall order a sentencing hearing. At the hearing the sentencing court shall:
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(b) Entertain submissions and evidence by the parties which are relevant to the sentence....
At the sentencing hearing, Hargis' trial counsel attempted to present a five-minute tape, consisting of the comments of three witnesses, for consideration prior to imposition of sentence. The following colloquy occurred:
MR. LEVIN: Judge, I know this is a bit unusual request, and I have to be candid. I was retained just last week on this case.
There were three people who wanted to be heard, and I was not able to produce them for one was in California, one is in Marianna, Florida, and one is traveling around the country.
Norman, you've been here long enough to know what my rules are with regard to other testimony. First, you got to file the motion if you want to have them live.
In this situation, since I don't have a rule concerning tape recordings, it's very innovative. I like the idea. You should have given me the tape. I could have listened to it last night. I could have gotten all the information.
I'm not going to take the time.
Rule 3.720(b) makes it mandatory for a trial court to entertain submissions and evidence which are relevant to the sentence. If the trial court refuses to allow a defendant to present matters in mitigation, the case must be remanded for a sentencing hearing and resentencing. Miller v. State, 435 So.2d 258 (Fla. 3d DCA 1983); Riley v. State, 423 So.2d 576 (Fla. 2d DCA 1982).
In Miller, the defendant was not prepared to offer mitigating factors immediately after the trial and requested a continuance. The trial court denied this request. The Third District affirmed the sentence, noting that the defendant was given an opportunity to present matters in mitigation, but that he was unprepared to do so. The court held that Rule 3.720(b) only requires that the defendant be given an "opportunity" to present matters in mitigation and that no abuse was shown in the denial of the motion for continuance. See also Cheatham v. State, 346 So.2d 1218 (Fla. 3d DCA 1977) (...
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Walcott v. State
...or to permit the defendant to present matters in bar or in mitigation or extenuation (Rule 3.720) (see, e.g., Hargis v. State, 451 So.2d 551 (Fla. 5th DCA 1984)), (2) sentences in excess of the statutory maximum authorized for the particular offense (see, e.g., §§ 775.082, 958.05, Fla.Stat.......
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Hill v. State
...case must be remanded for a new sentencing hearing . See Davis v. State , 642 So.2d 136, 137 (Fla. 3d DCA 1994) ; Hargis v. State , 451 So.2d 551, 552 (Fla. 5th DCA 1984). Ventura v. State , 741 So.2d 1187, 1189 (Fla. 3d DCA 1999) (emphasis added).In an analogous case that was also cited as......
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Davis v. State, 93-2355
...a sentence or deter sentencing as an habitual offender. See Scruggs v. State, 463 So.2d 487 (Fla. 2d DCA 1985); Hargis v. State, 451 So.2d 551 (Fla. 5th DCA 1984); Miller v. State, 435 So.2d 258, 259 (Fla. 3d DCA Here, the trial court committed reversible error by refusing to allow the appe......
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State v. Munson, 91-2452
...to comply with the imperative of rule 3.720(b) is reversible error. Mask v. State, 289 So.2d 385, 387 (Fla.1973); Hargis v. State, 451 So.2d 551, 552 (Fla. 5th DCA 1984); Tuthill v. State, 478 So.2d 409 (Fla. 3d DCA 1985), rev. denied, 484 So.2d 10 (Fla.1986); State v. Hohl, 431 So.2d 707, ......