Grubbs v. State

311 So. 2d 411

• Court: District Court of Appeal of Florida
• Decided: April 23, 1975
• Docket: 74-354
• Status: Published

Opinion

311 So.2d 411 (1975)

Major Lee GRUBBS, Appellant,
v.
STATE of Florida, Appellee.

No. 74-354.

District Court of Appeal of Florida, Second District.

April 23, 1975.

James A. Gardner, Public Defender, Sarasota, and Harold H. Moore, Asst. Public Defender, Bradenton, for appellant.

Robert L. Shevin, Atty. Gen., Tallahassee, and Richard G. Pippinger, Asst. Atty. Gen., Tampa, for appellee.

SCHEB, Judge.

Appellant was charged with first degree murder and convicted of assault with intent to commit murder. He was sentenced to 15 years in prison with credit for all time served.

We have considered the points raised by appellant and after review of the briefs and record, we find merit to only one contention: that the trial court failed, before sentencing, to receive and consider a report of pre-sentence investigation, as required by RCrP 3.710.

RCrP 3.710 provides:

In all cases in which the court has discretion as to what sentence may be imposed, the court may refer the case to the probation and parole commission for investigation and recommendation. No sentence or sentences other than probation shall be imposed on any defendant found guilty of a first felony offense or found guilty of a felony while under the age of 18 years, until after such investigation has first been made and the recommendations of the commission received and considered by the sentencing judge.

Since Rule 3.710 contemplates the report being prepared by the probation and parole commission, we reject the appellee's contention that the trial judge's inquiries, in effect, constituted a pre-sentence investigation.

There having been no suggestion in the record that the appellant had any prior felony offenses, it was mandatory for the trial court to request and consider a pre-sentence report prior to sentencing. Mitchum v. State, Fla.App. 1st 1974, 292 So.2d 620; Lopes v. State, Fla.App. 1975, 309 So.2d 591, Opinion filed March 21, 1975.

Accordingly, we affirm as to the conviction, but the sentence is vacated and the case is remanded for resentencing by the trial court consistent with the requirements of RCrP 3.710.

BOARDMAN, A.C.J., and GRIMES, J., concur.