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Clarke v. State

District Court of Appeal of Florida, Third District
Jan 27, 1970
230 So. 2d 486 (Fla. Dist. Ct. App. 1970)

Opinion

No. 69-518.

January 27, 1970.

Appeal from the Criminal Court of Record for Dade County, Murray Goodman, J.

Jack R. Nageley, Lawrence S. Katz, Harvey S. Swickle, Miami Beach, for appellant.

Earl Faircloth, Atty. Gen., and Harold Mendelow, Asst. Atty. Gen., for appellee.

Before CHARLES CARROLL, BARKDULL and SWANN, JJ.


Defendant, Clarke appeals from a conviction for aggravated assault and his sentence for five years.

After conviction, his request, by private counsel, for a pre-sentence investigation was not granted by the trial judge. He asserts the denial of this request was reversible error under Rule 1.780, "Cr.PR", 33 F.S.A.

We do not agree. The rule requires the court under certain circumstances, to inquire into mitigating or aggravating circumstances prior to sentencing a convicted defendant. The rule requires in pertinent part:

"When the court has discretion as to the penalty to be inflicted on the defendant, it shall, upon the suggestion of either party that there are circumstances which may properly be taken into consideration, * * *."

There was no suggestion here as to any mitigating or aggravating circumstances which the defendant wanted the court to properly consider in a pre-sentence investigation. The rule requires that some circumstances be presented to the trial judge for his proper consideration in order to show that there is a necessity or requirement for a pre-sentence investigation. This was not done in the instant case. No reversible error was committed, therefore.

We considered the other points raised by the defendant for reversal on appeal and find them to be without merit.

For these reasons the judgment and sentence herein appealed be and the same is hereby

Affirmed.


Summaries of

Clarke v. State

District Court of Appeal of Florida, Third District
Jan 27, 1970
230 So. 2d 486 (Fla. Dist. Ct. App. 1970)
Case details for

Clarke v. State

Case Details

Full title:FREDI HERBERT CLARKE, APPELLANT, v. THE STATE OF FLORIDA, APPELLEE

Court:District Court of Appeal of Florida, Third District

Date published: Jan 27, 1970

Citations

230 So. 2d 486 (Fla. Dist. Ct. App. 1970)

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