Mask v. State, 43923
Decision Date | 19 December 1973 |
Docket Number | No. 43923,43923 |
Citation | 289 So.2d 385 |
Parties | William Henry MASK, Appellant, v. STATE of Florida, Appellee. |
Court | Florida Supreme Court |
Michael F. Cycmanick and James M. Russ of the Law Offices of James M. Russ, Orlando, for appellant.
Robert L. Shevin, Atty. Gen., and Charles Corces, Jr., Asst. Atty. Gen., for appellee.
This appeal was transferred here by the District Court of Appeal, Second District, because the trial court, in denying a Motion to Dismiss the information upon which appellant was tried, passed upon the constitutional validity of Fla.Stat. §§ 40.01 and 782.04 F.S.A. We have jurisdiction under Article V, § 3(b)(1), F.S.A. Florida Constitution.
We find no merit in the appellant's attacks on the cited statutes. As to other points argued by the appellant, we find no error which would require a reversal of his manslaughter conviction. We do hold, however, that the appellant was improperly sentenced, and we remand this cause to the Circuit Court for the Fifth Judicial Circuit for resentencing.
The trial transcript reflects that, after the jury had returned its verdict and had been polled by the Clerk, the following ensued:
In Nations v. State, 145 So.2d 259 (2d DCA Fla.1962), the trial court was held to be in error in denying the defendant an opportunity to present evidence in mitigation and extenuation when the extent of the sentence for the crime of which he was found guilty was discretionary. This result was based upon Fla.Stat. § 921.13 F.S.A., which has since been repealed. However, Rule 3.780, Florida Rules of Criminal Procedure, 33 F.S.A., was essentially the same:
'When the court has discretion as to the penalty to be inflicted on the defendant, it shall, upon the suggestion of either party that there are circumstances which may properly be taken into consideration, hear evidence as to the same summarily in open court, either immediately or at a specified time and upon such notice to the adverse party as the court may direct; or the court may inquire into such circumstances on its own motion.'
That was the Rule in effect at the time of sentencing in this case. The Rule was not mandatory unless a defendant first suggested that there were factors which ought to be considered in mitigation of sentence. However, we feel that a motion for a presentence investigation sufficiently suggested such circumstances.
A request for a pre-sentence investigation suggests the possibility of factors which might warrant placing the defendant on probation. Although such factors might not warrant probation, they might still be proper to consider in mitigation of sentence. At the time of sentencing in this case, a pre-sentence investigation was itself discretionary when probation was authorized by law (see ...
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State v. Munson, 91-2452
...Florida courts have consistently held that the failure 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, ......
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Small v. State, 78-1077
...hearing is mandatory under Fla.R.Crim.P. 3.720 and may not be omitted at the discretion of the trial court. See also, Mask v. State, 289 So.2d 385 (Fla.1973); Trudeau v. State, 348 So.2d 66 (Fla. 4th DCA 1977) certiorari denied, 355 So.2d 517 (Fla.1978); Culbertson v. State, 306 So.2d 142 (......
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State v. Hohl, 82-2684
...to the sentence." The rule makes it mandatory for the court to receive evidence of aggravating or mitigating circumstances. Mask v. State, 289 So.2d 385 (Fla.1974); Trudeau v. State, 348 So.2d 66 (Fla. 4th DCA 1977), cert. denied, 355 So.2d 517 (Fla.1978); Culbertson v. State, 306 So.2d 142......
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Mason v. State, 78-77
...requirement of a sentencing hearing is mandatory under the rule and may not be omitted at the discretion of the trial court. Mask v. State, 289 So.2d 385 (Fla.1973); Trudeau v. State, 348 So.2d 66 (Fla. 4th DCA 1977), Certiorari denied, 355 So.2d 517 (Fla.1978); Culbertson v. State, 306 So.......