Albarracin v. State

Full title: Joshua ALBARRACIN, Appellant, v. STATE of Florida, Appellee.

Court: District Court of Appeal of Florida, Fourth District.

Date published: Apr 10, 2013

112 So. 3d 574 (Fla. Dist. Ct. App. 2013)

Opinion

No. 4D12–294.

2013-04-10

Joshua ALBARRACIN, Appellant, v. STATE of Florida, Appellee.

Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Michael A. Robinson, Judge; L.T. Case No. 09–22730 CF10A. Brett D. McIntosh, Sarasota, for appellant. Pamela Jo Bondi, Attorney General, Tallahassee, and Sue–Ellen Kenny, Assistant Attorney General, West Palm Beach, for appellee.

PER CURIAM.

Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Michael A. Robinson, Judge; L.T. Case No. 09–22730 CF10A.
Brett D. McIntosh, Sarasota, for appellant. Pamela Jo Bondi, Attorney General, Tallahassee, and Sue–Ellen Kenny, Assistant Attorney General, West Palm Beach, for appellee.
PER CURIAM.

We affirm appellant's conviction for aggravated child abuse. However, we vacate the sentence and remand with instructions to order a presentence investigation report (PSI) before re-sentencing appellant.¹ Becauseappellant was a first-time felony offender, Florida Rule of Criminal Procedure 3.170(a) required the trial court to first order a PSI before sentencing appellant to more than probation.² Also, because appellant was eligible for Youthful Offender sentencing, section 958.07, Florida Statutes (2011), required the trial court to order a PSI before sentencing appellant. See Bready v. State, 430 So.2d 997, 997 (Fla. 4th DCA 1983) (vacating sentence and remanding with instructions to order a presentence investigation pursuant to the mandatory provisions of the 1979 Florida Youthful Offender Act).

1 The trial court's failure to consider a mandatory presentence investigation report before sentencing a defendant is a sentencing error that can be preserved via the filing of a rule 3.800(b) motion. Brown v. State, 61 So.3d 1238, 1238 (Fla. 1st DCA 2011).

2 .Florida Rule of Criminal Procedure 3.710(a) provides:
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 Department of Corrections received and considered by the sentencing judge.

Affirmed in part; Reversed in part; and Remanded.

MAY, C.J., TAYLOR and GERBER, JJ., concur.