Clarke v. State

230 So. 2d 486, 1970 Fla. App. LEXIS 7014

• Court: District Court of Appeal of Florida
• Decided: January 27, 1970
• Docket: No. 69-518
• Status: Published

Opinion

PER CURIAM.

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.