Thrower v. State

District Court of Appeal of Florida

Thrower v. State

491 So. 2d 1277, 11 Fla. L. Weekly 1673, 1986 Fla. App. LEXIS 9470

CourtDistrict Court of Appeal of Florida

DecidedJuly 30, 1986

DocketNo. 85-1852

StatusPublished

Cited by1 cases

This text of 491 So. 2d 1277 (Thrower v. State) 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.

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Thrower v. State, 491 So. 2d 1277, 11 Fla. L. Weekly 1673, 1986 Fla. App. LEXIS 9470 (Fla. Ct. App. 1986).

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Opinion

FRANK, Judge.

After violating probation Timothy Thrower was sentenced in May, 1985, for offenses occurring in September, 1982. Thrower’s point on appeal is that the trial court erred by not ensuring that he was given the opportunity affirmatively to select a guidelines sentence. We find nothing which imposes upon the trial court a duty to inform the defendant that he can choose guidelines sentencing upon conviction of a crime occurring prior to October 1, 1983. A defendant who is represented by counsel and has the opportunity to select the guidelines but does not do so waives that right. Johnson v. State, 453 So.2d 411 (Fla. 1st DCA 1984).

We are, however, concerned with the absence from the sentencing order of indication that Thrower, not having been sentenced pursuant to the guidelines, is entitled to eligibility for parole. We therefore remand this matter for the inclusion within the sentencing order of a notation that Thrower retains a parole right. Modification of the sentencing order consistent with this opinion does not require Thrower’s presence before the trial court.

SCHOONOVER, A.C.J., and LEHAN, J., concur.

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FRANK, Judge.

After violating probation Timothy Thrower was sentenced in May, 1985, for offenses occurring in September, 1982. Thrower’s point on appeal is that the trial court erred by not ensuring that he was given the opportunity affirmatively to select a guidelines sentence. We find nothing which imposes upon the trial court a duty to inform the defendant that he can choose guidelines sentencing upon conviction of a crime occurring prior to October 1, 1983. A defendant who is represented by counsel and has the opportunity to select the guidelines but does not do so waives that right. Johnson v. State, 453 So.2d 411 (Fla. 1st DCA 1984).

We are, however, concerned with the absence from the sentencing order of indication that Thrower, not having been sentenced pursuant to the guidelines, is entitled to eligibility for parole. We therefore remand this matter for the inclusion within the sentencing order of a notation that Thrower retains a parole right. Modification of the sentencing order consistent with this opinion does not require Thrower’s presence before the trial court.

SCHOONOVER, A.C.J., and LEHAN, J., concur.

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Bluebook (online)

491 So. 2d 1277, 11 Fla. L. Weekly 1673, 1986 Fla. App. LEXIS 9470, Counsel Stack Legal Research, https://law.counselstack.com/opinion/thrower-v-state-fladistctapp-1986.

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