Levin v. State

5 Citing cases

  1. State v. Roberson

    141 Ohio App. 3d 626 (Ohio Ct. App. 2001)   Cited 22 times

    While appellee cites to some cases that have held that the Gardner holding is limited to death penalty cases, those cases centered around the issue of whether the court can consider confidential nonfactual material during sentencing and not the issue of disclosure. See Levin v. State (Fla.App. 1977), 348 So.2d 1189 and McClendon v. Florida (Fla.App. 1991), 589 So.2d 352, 354 (which noted that the Florida courts have reversed sentences where factual material was included in the confidential portion of the report). Lower courts decisions prior to the Gardner decision in 1977, held that the Due Process Clause is not violated by a sentence which was imposed based upon information in a presentence report to which the defendant was not privy.

  2. McClendon v. State

    589 So. 2d 352 (Fla. Dist. Ct. App. 1991)   Cited 2 times

    By its express terms, however, Gardner is limited to death penalty cases and at least one Florida court has refused to apply it in a non-capital case. Levin v. State, 348 So.2d 1189 (Fla. 4th DCA 1977). Other authorities are in agreement.

  3. Turner v. State

    395 So. 2d 1242 (Fla. Dist. Ct. App. 1981)   Cited 7 times
    In Turner, the court held that a probationer who resided at the Men's Probationers Restitution Residence Center in Jacksonville was not entitled to credit for the time he spent there prior to his sentence to prison for probation violation.

    Appellant seeks review of the order denying his motion to correct sentence in this and another respect. The court, finding that Appellant was free to leave the center every morning and to remain at liberty until he returned each night (after which he was required to be at the center during the night except by special authorization), held that this did not amount to Appellant being incarcerated, as the word "incarcerated" is defined in Sims v. State, 369 So.2d 431 (Fla. 2nd DCA 1979). While we feel that the restrictions placed upon Appellant would marginally meet the Sims definition of being "incarcerated", we decline to follow the Sims case (and similar decisions by the Second District Court of Appeal) but rather prefer to align ourselves with the Fourth District Court of Appeal on this point as reflected by its decisions in Pennington v. State, 4th DCA, Case No. 78-1302, Opinion filed January 16, 1980, and Levin v. State, 348 So.2d 1189 (Fla. 4th DCA 1977). Singleton v. State, 373 So.2d 713 (Fla. 2nd DCA 1979); Barron v. State, 369 So.2d 669 (Fla. 2nd DCA 1979); Graham v. State, 366 So.2d 498 (Fla. 2nd DCA 1979); Johnson v. State, 334 So.2d 334 (Fla. 2nd DCA 1979).

  4. Pennington v. State

    398 So. 2d 828 (Fla. Dist. Ct. App. 1980)

    Newmons v. Lake Worth Drainage District, 87 So.2d 49 (Fla. 1956). This should particularly have been obvious to appellant from our holding in Levin v. State, 348 So.2d 1189 (Fla. 4th DCA 1977), wherein we held that time spent in the state mental hospital was not to be credited upon appellant's sentence because the statute mandating credit refers only to "credit for all of the time he spent in the county jail before sentence." Thus, it is clear we do not agree with the two Second District cases cited by appellant.

  5. Durant v. State

    364 So. 2d 833 (Fla. Dist. Ct. App. 1978)

    Affirmed. See Levin v. State, 348 So.2d 1189 (Fla. 4th DCA 1977). GRIMES, C.J., and BOARDMAN and SCHEB, JJ., concur.