Wilkerson v. State, No. 90-2858

CourtCourt of Appeal of Florida (US)
Writing for the CourtJOANOS
Citation583 So.2d 428
Decision Date05 August 1991
Docket NumberNo. 90-2858
PartiesClarence WILKERSON, Appellant, v. STATE of Florida, Appellee. 583 So.2d 428, 16 Fla. L. Week. D2032

Page 428

583 So.2d 428
Clarence WILKERSON, Appellant,
v.
STATE of Florida, Appellee.
No. 90-2858.
583 So.2d 428, 16 Fla. L. Week. D2032
District Court of Appeal of Florida,
First District.
Aug. 5, 1991.

Nancy A. Daniels, Public Defender, and Abel Gomez, Asst. Public Defender, Tallahassee, for appellant.

Robert A. Butterworth, Atty. Gen., and Sara D. Baggett, Asst. Atty. Gen., Tallahassee, for appellee.

JOANOS, Chief Judge.

Clarence Wilkerson has appealed his conviction and sentence for lewd and lascivious act on a child under 16, and for resisting arrest without violence. We affirm the conviction, but vacate the sentence and remand for resentencing after preparation and consideration of a pre-sentence investigation.

The charge of lewd and lascivious act on a child under 16 was based on an incident where allegedly Wilkerson awakened his daughter by rubbing his hand on her private parts. Wilkerson alleges first that the trial court erred in admitting certain similar fact evidence, to wit: the testimony of the victim's sibling to an incident a year earlier, where she awoke to find Wilkerson unfastening her pajama bottoms. The trial court did not err in the admission of this testimony. See Heuring v. State, 513 So.2d 122 (Fla.1987); Calloway v. State, 520 So.2d 665 (Fla. 1st DCA), rev. denied 529 So.2d 693 (Fla.1988); Montgomery v. State, 564 So.2d 604 (Fla. 3d DCA 1990).

Wilkerson's second allegation of error is premised on the provision of Rule 3.710, Florida Rules of Criminal Procedure, that "[n]o sentence or sentences other than probation shall be imposed on any defendant found guilty of a first felony offense ... until after [a pre-sentence] investigation has first been made and the recommendations of the Department of Corrections received and considered by the sentencing judge." The state concedes that this was Wilkerson's first felony offense, and that the required investigation was not obtained or considered, but maintains that Wilkerson waived the error by failing to bring it to the attention of the sentencing court. This argument was rejected in Harden v. State, 290 So.2d 551 (Fla. 1st DCA 1974). See also Beverly v. State, 330 So.2d 527 (Fla. 1st DCA 1976); Pegues v. State, 361 So.2d 433 (Fla. 1st DCA 1978), cert.

Page 429

denied 368 So.2d 1372 (Fla.1979); Watson v. State, 371 So.2d 237 (Fla. 1st DCA 1979).

Accordingly, while Wilkerson's conviction is affirmed, his sentence is vacated. We remand for resentencing after...

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5 practice notes
  • Saffor v. State, No. 91-2667
    • United States
    • Court of Appeal of Florida (US)
    • September 15, 1993
    ...court found that a difference in sex of the victims would not preclude admission of collateral crimes evidence. 6 In Wilkerson v. State, 583 So.2d 428 (Fla. 1st DCA1991), the fact that the victim's sibling awoke to find the defendant unfastening her pajamas, which apparently prevented the d......
  • Moore v. State, No. 1D99-4322.
    • United States
    • Court of Appeal of Florida (US)
    • August 30, 2000
    ...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. 1st DCA 1988)(reversing denial of a motion for post-convict......
  • Adkins v. State, No. 91-1389
    • United States
    • Court of Appeal of Florida (US)
    • September 11, 1992
    ...DCA 1989); Grant v. State, 577 So.2d 625 (Fla. 1st DCA 1991); Lazarowicz v. State, 561 So.2d 392 (Fla. 3d DCA 1990); Wilkerson v. State, 583 So.2d 428 (Fla. 1st DCA 1991); Padgett v. State, 551 So.2d 1259 (Fla. 5th DCA 1989). Clearly, then, in such cases as the one at hand, where identity i......
  • Hardwick v. State, No. 92-2251
    • United States
    • Court of Appeal of Florida (US)
    • January 21, 1994
    ...object at trial does not constitute a waiver of this error. Spencer v. State, 608 So.2d 545 (Fla. 4th DCA 1992; Wilkerson v. State, 583 So.2d 428 (Fla. 1st DCA Accordingly, we affirm the appellant's aggravated battery conviction but reverse the sentences and remand for resentencing. DAUKSCH......
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5 cases
  • Saffor v. State, No. 91-2667
    • United States
    • Court of Appeal of Florida (US)
    • September 15, 1993
    ...court found that a difference in sex of the victims would not preclude admission of collateral crimes evidence. 6 In Wilkerson v. State, 583 So.2d 428 (Fla. 1st DCA1991), the fact that the victim's sibling awoke to find the defendant unfastening her pajamas, which apparently prevented the d......
  • Moore v. State, No. 1D99-4322.
    • United States
    • Court of Appeal of Florida (US)
    • August 30, 2000
    ...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. 1st DCA 1988)(reversing denial of a motion for post-convict......
  • Adkins v. State, No. 91-1389
    • United States
    • Court of Appeal of Florida (US)
    • September 11, 1992
    ...DCA 1989); Grant v. State, 577 So.2d 625 (Fla. 1st DCA 1991); Lazarowicz v. State, 561 So.2d 392 (Fla. 3d DCA 1990); Wilkerson v. State, 583 So.2d 428 (Fla. 1st DCA 1991); Padgett v. State, 551 So.2d 1259 (Fla. 5th DCA 1989). Clearly, then, in such cases as the one at hand, where identity i......
  • Hardwick v. State, No. 92-2251
    • United States
    • Court of Appeal of Florida (US)
    • January 21, 1994
    ...object at trial does not constitute a waiver of this error. Spencer v. State, 608 So.2d 545 (Fla. 4th DCA 1992; Wilkerson v. State, 583 So.2d 428 (Fla. 1st DCA Accordingly, we affirm the appellant's aggravated battery conviction but reverse the sentences and remand for resentencing. DAUKSCH......
  • Request a trial to view additional results

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