Public-domain · open source
OpenJurist

478 So. 2d 409

478 So.2d 409

10 Fla.L.Weekly 2483

Docket No. 85-82.

Tuthill v. State

Harold TUTHILL, Appellant, v. The STATE of Florida, Appellee.

District Court of Appeal of Florida

Decided November 5, 1985.

District Court of Appeal of Florida · decided 1985-11-05

Key passage — most relied on by later courts

“was not afforded an opportunity to be heard on the question of the severity of the sentence to be imposed.”

quoted by 1 later decision, including 518 So. 2d 1300 - Tuthill v. State

Relies on 439 So. 2d 219 - State v. Scott

Good law ✅— No negative treatment on recordhow we know

Decided 1985-11-05

How this case has been cited

Cited by 6 later decisions — most recently February 2001

6 state decisions

30198519902000decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

View the full empirical analysis of this case →

¶1Fine, Jacobson, Schwartz, Nash, Block & England and Kevin Emas and Theodore Klein, Miami, for appellant.

¶2Jim Smith, Atty. Gen., and Richard E. Doran, Asst. Atty. Gen., for appellee.

¶3Before BARKDULL, BASKIN and FERGUSON, JJ.

¶4BASKIN, Judge.

¶5The record reveals that appellant Tuthill was not afforded an opportunity to be heard on the question of the severity of the sentence to be imposed. The transcript discloses the following colloquy:

THE COURT: All right, Mr. Tuthill, is there anything you care to say before I impose sentence? Anything you want to say before I sentence you?
THE DEFENDANT: On probation?
THE COURT: Yes.
MR. DIEGUEZ: He didn't violate probation, Your Honor.
THE COURT: As far as I'm concerned, Mr. Dieguez, I am shocked. I am outraged. These youngsters, you have scarred them for the rest of their lives, Mr. Tuthill. I put you on probation. *410 You violated probation. I find you guilty. I adjudicate you guilty and I am sentencing you to 15 years in the State Penitentiary.
THE DEFENDANT: You asked me if I could say something and I haven't, Your Honor.
THE COURT: All right.
THE DEFENDANT: I couldn't possibly have violated probation.
THE COURT: I have heard that. The only thing I want to know, is there any reason why I shouldn't give you the maximum sentence which I have just done? I don't want to hear your arguments. That's for an Appellate Court. When they review the testimony, they will determine whether or not this Court is in error. I have heard testimony that offended me, that shocked my conscience. As far as I am concerned, you're a chicken hawk. You prey on little kids and you got caught and you don't deserve to be on the street.

¶6Because the court foreclosed the presentation of matters "relevant to the sentence," State v. Scott,439 So.2d 219 (Fla. 1983); Fla.R.Crim.P. 3.720(b), the cause is remanded solely for resentencing. The remaining point lacks merit.

¶7Affirmed in part; reversed in part; remanded.

¶8BARKDULL, Judge, dissenting.

¶9I respectfully dissent. The quoted portion of the sentencing hearing set forth in the majority opinion clearly demonstrates that the defendant failed to avail himself of the opportunity to be heard on the question of the sentence. He wanted to dispute the probation violation and refused to take advantage of the opportunity to speak. He should not now be heard to complain.

/478/so2d/409 · .json · Public domain