Walker v. State, 72-657
| Decision Date | 20 December 1972 |
| Docket Number | No. 72-657,72-657 |
| Citation | 284 So.2d 415 |
| Parties | Cleon Donald WALKER, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Judge C. Luckey, Jr., Public Defender, and Ralph Steinberg, Asst. Public Defender, Tampa, for appellant.
Cleon Donald Walker in pro. per.
Robert L. Shevin, Atty. Gen., Tallahassee, and David Luther Woodward, Asst. Atty. Gen., Tampa, for appellee.
Affirmed.
ON PETITION FOR REHEARING
We have treated this as a direct appeal from the entry of a new judgment and sentence imposed upon appellant who had moved pursuant to Rule 3.850, R.Cr.P., to vacate the former judgment and sentence.
It appears that previously, in the aforementioned Rule 3.850 proceeding, this court remanded the cause for determination of whether the defendant, at that time under a life sentence as a fourth offender habitual criminal, had theretofore been validly convicted within the principles of Gideon. Upon remand, the lower court vacated the habitual criminal judgment and set aside the sentence therefor. In the same order, he adjudicated the defendant guilty of the lesser included offense of being a Second offender and imposed a ten year sentence. This appeal is from this new judgment and sentence.
The public defender filed an Anders brief. Appellant filed a pro. per. brief thereafter. In neither brief was it alleged that appellant was not present at the hearing before the trial court at which the new judgment and sentence were entered. Moreover, the point is not raised in any other pleading or assignment either here or below. Accordingly, no error being otherwise found, we affirmed.
Now, on rehearing, And for the first time, appellant alleges that he was not present before the lower court at the entry of the judgment or at imposition of the sentence presently in force. If that is true, the judgment and sentence are clearly void since each is an essential stage of the proceedings and no waiver of appellant's presence thereat appears of record. 1 Because of the fundamental nature of the allegation we consider it now, even though not previously expressly raised, to avoid further litigation. In view whereof, we have heretofore issued rules nisi to ascertain the truth thereof.
From the State's responses to said rules it appears that in truth and in fact the trial court did indeed impose a new sentence in the...
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Royal v. State
...research reveals no Indiana cases directly on point, such action is not without precedent in other jurisdictions. Walker v. State, (1973) Fla.App., 284 So.2d 415; State v. Stephenson, (1956) 41 N.J.Super. 315, 125 A.2d While it was undoubtedly error to hold the second hearing in the defenda......
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...Ellison v. State, 593 So.2d 1205, 1206 (Fla. 5th DCA 1992); Keller v. State, 432 So.2d 672, 673 (Fla. 5th DCA 1983); Walker v. State, 284 So.2d 415 (Fla. 2d DCA 1972). Here, appellant's original sentence was above the sentence that could be imposed without departure under the 1994 guideline......
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...case law which holds that a defendant may knowingly and voluntarily relinquish a fundamental constitutional right. In Walker v. State, 284 So.2d 415 (Fla. 2d DCA 1972), the Second District reversed a sentence which was imposed upon a defendant in absentia where the record showed that no wai......