District Court of Appeal of Florida, First DistrictOct 28, 1977
351 So. 2d 375 (Fla. Dist. Ct. App. 1977)

No. EE-91.

October 28, 1977.

Appeal from the Circuit Court, Marion County, W.T. Swigert, J.

Michael J. Minerva, Public Defender, Tallahassee, for appellant.

Robert L. Shevin, Atty. Gen., and Wallace E. Allbritton, Asst. Atty. Gen., Tallahassee, for appellee.

A conviction for murder in the third degree. Defense counsel did not clearly request that the jury be recharged on excusable and justifiable homicide when the court recharged the jury on the degrees of murder and manslaughter. Hedges v. State, 172 So.2d 824 (Fla. 1965) is therefore inapplicable. The sentencing judge, who was not the trial judge, acted within his authority under Fla.R.Crim.P. 3.700(c) by taking into consideration the jury's verdict of guilt, the presentence investigation report and the prosecutor's supplementary description of the offense. Appellant's explanation at the sentencing, which amounted to a plea of self-defense, had been rejected by the jury. Accordingly, the sentencing judge was not required to delve further into the record to familiarize himself with the case. McCoy v. State, 344 So.2d 250 (Fla.1st DCA 1977). Contrast Caplinger v. State, 271 So.2d 780 (Fla.3d DCA 1973). No other error appears.


BOYER, Acting C.J., and MILLS, J., concur.