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371 So. 2d 532

Small v. State

District Court of Appeal of Florida · decided 1979-05-29

Cited by 2 later decisions — most recently May 1989

2 state decisions

Key passage — most relied on by later courts

“While it is undisputed that this rule requires a court, before sentencing, to afford a defendant the opportunity to present matters in mitigation of sentence, the court is not compelled under the rules to grant defendant a continuance prior to sentencing upon his motion therefor. The general rule is that the granting or denial of a motion for continuance is within the discretion of the trial court, and the court's action thereto will be reversed only upon a showing of a palpable abuse of discretion... . Defendant was given an opportunity to submit evidence in mitigation of sentence, and we find the trial court fully complied with the requirements of Fla.R.Crim.P. 3.720.”

quoted by 1 later decision, including 435 So. 2d 258 - Miller v. State

Relies on First Commerce Realty Investors v. Peninsular Title Ins. Co. · Smith v. State · Jones v. State

Good law ✅— No negative treatment on recordhow we know

Decided 1979-05-29

View the full empirical analysis of this case →

PER CURIAM.

¶1Defendant, Small, was tried by a jury and a verdict of guilty was returned for the offense of the unauthorized use of a motor vehicle. The trial court adjudicated defendant guilty and immediately sentenced him to imprisonment for a period of one year in the county jail; the sentence constitutes the maximum penalty under the applicable statute. Defense counsel stated to the court that there were certain circumstances about which the court should be made fully aware in order for it to consider mitigation of sentence and the defense requested a sentencing hearing pursuant to Florida Rule of Criminal Procedure 3.720. The court denied the motion. Defendant filed the appeal contending that not only *533should a sentencing hearing have been afforded him, but that the trial court erred in failing to give the defendant credit for time spent in jail prior to sentencing, pursuant to § 921.161(1), Florida Statutes (1975). We agree with the appellant on these points.

¶2In Mason v. State, 366 So.2d 171 (Fla. 3d DCA 1979), the court held that the requirement of a sentencing 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 (Fla. 2d DCA 1975). The Masoncourt stated that it would defeat the whole purpose of the rule to deny the defendant the opportunity to present evidence relevant to the sentence prior to the imposition of that sentence.1

¶3We now address appellant/defendant’s contention that error was committed by the court in that it failed to give credit for time served. We have determined that when the cause is remanded pursuant to this court’s mandate regarding point one, the trial court shall additionally determine what credit shall be afforded defendant for time served prior to sentencing. Smith v. State, 310 So.2d 770 (Fla. 2d DCA 1975); Brooker v. State, 362 So.2d 697 (Fla. 2d DCA 1978); Section 921.161(1), Florida Statute (1975).

¶4We, therefore, reverse and remand the cause with directions to the trial court to resentence defendant after first affording him an opportunity to offer matters in mitigation of sentence and to afford him credit for time served in the county jail prior to sentencing.

¶5Reversed and remanded.

¶6. The court noted in its option that the holding in Cheatham v. State, 346 So.2d 1218 (Fla. 3d DCA 1977), does not dictate a contrary result. In Cheathamthe court held that the trial court’s denial of defendant’s motion for a continuance prior to sentencing was not an abuse of discretion, and the court had fully complied with the requirements of Fla.R.Crim.P. 3.720.

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