Derrick Culver v. State of Florida

District Court of Appeal of Florida

Derrick Culver v. State of Florida

163 So. 3d 622, 2015 Fla. App. LEXIS 5858, 2015 WL 1813978

CourtDistrict Court of Appeal of Florida

DecidedApril 22, 2015

Docket4D14-285

StatusPublished

Cited by1 cases

This text of 163 So. 3d 622 (Derrick Culver v. State of Florida) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Derrick Culver v. State of Florida, 163 So. 3d 622, 2015 Fla. App. LEXIS 5858, 2015 WL 1813978 (Fla. Ct. App. 2015).

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Opinion

PER CURIAM.

Rather than continue with his trial, appellant agreed to an open plea to the court one day before his twenty-first birthday, in the hope that the court would sentence appellant as a youthful offender for his-crimes. In doing so, his counsel waived the preparation of a presentence investigation report, because to obtain one would push sentencing past his birthday and thus eliminate the court’s ability to impose a youthful offender sentence. After the court rejected a youthful offender sentence and sentenced him to a substantial prison sentence, appellant moved to vacate his plea, claiming he was entitled to a presen-tence investigation before the court could *623 sentence him. The court denied the motion.

We affirm. Although appellant contends that his right to a presentence investigation could not be waived by his attorney, we rejected this same argument in Ortiz v. State, 9 So.3d 774, 776 (Fla. 4th DCA 2009), where we held that the preparation of the presentence investigation in a habitual offender case was a procedural right which did not require a defendant’s personal waiver. The same analysis applies to waiver of the presentence investigation required by Florida Rule of Criminal Procedure 3.710. While Albarracin v. State, 112 So.3d 574 (Fla. 4th DCA 2013), relied on by appellant, does state that a presentence investigation is required for youthful offender sentencing, that case did not involve a waiver by defense attorney.

Had the presentence investigation not been waived, its preparation, which usually takes sixty days, would have prevented the court from imposing a youthful offender sentence, as appellant would have passed his twenty-first birthday. Moreover, appellant did present evidence to the court of his background and character, so the court was able to weigh the absence of prior criminal history against the nature of the crimes committed. In doing so, the court clearly concluded, on the record, that because of the nature of the crimes, youthful offender sentencing was not appropriate.

Affirmed.

WARNER, GROSS and FORST, JJ., concur.

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PER CURIAM.

Rather than continue with his trial, appellant agreed to an open plea to the court one day before his twenty-first birthday, in the hope that the court would sentence appellant as a youthful offender for his-crimes. In doing so, his counsel waived the preparation of a presentence investigation report, because to obtain one would push sentencing past his birthday and thus eliminate the court’s ability to impose a youthful offender sentence. After the court rejected a youthful offender sentence and sentenced him to a substantial prison sentence, appellant moved to vacate his plea, claiming he was entitled to a presen-tence investigation before the court could *623 sentence him. The court denied the motion.

We affirm. Although appellant contends that his right to a presentence investigation could not be waived by his attorney, we rejected this same argument in Ortiz v. State, 9 So.3d 774, 776 (Fla. 4th DCA 2009), where we held that the preparation of the presentence investigation in a habitual offender case was a procedural right which did not require a defendant’s personal waiver. The same analysis applies to waiver of the presentence investigation required by Florida Rule of Criminal Procedure 3.710. While Albarracin v. State, 112 So.3d 574 (Fla. 4th DCA 2013), relied on by appellant, does state that a presentence investigation is required for youthful offender sentencing, that case did not involve a waiver by defense attorney.

Had the presentence investigation not been waived, its preparation, which usually takes sixty days, would have prevented the court from imposing a youthful offender sentence, as appellant would have passed his twenty-first birthday. Moreover, appellant did present evidence to the court of his background and character, so the court was able to weigh the absence of prior criminal history against the nature of the crimes committed. In doing so, the court clearly concluded, on the record, that because of the nature of the crimes, youthful offender sentencing was not appropriate.

Affirmed.

WARNER, GROSS and FORST, JJ., concur.

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Bluebook (online)

163 So. 3d 622, 2015 Fla. App. LEXIS 5858, 2015 WL 1813978, Counsel Stack Legal Research, https://law.counselstack.com/opinion/derrick-culver-v-state-of-florida-fladistctapp-2015.

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