Opinion
No. 57050.
April 2, 1981.
Richard S. Rhodes and Edward R. Kirkland, Orlando, for petitioner.
Jim Smith, Atty. Gen. and Glenn H. Mitchell, Asst. Atty. Gen., West Palm Beach, for respondent.
This cause having heretofore been submitted to the Court on jurisdictional briefs and portions of the record deemed necessary to reflect jurisdiction under Fla.R. App.P. 9.120, and it appearing to the Court that it is without jurisdiction, it is ordered that certiorari is denied.
No Motion for Rehearing will be entertained by the Court. See Fla.R.App.P. 9.330(d).
SUNDBERG, C.J., and OVERTON, ENGLAND, ALDERMAN and McDONALD, JJ., concur.
BOYD, J., dissents with an opinion.
ADKINS, J., dissents.
I dissent from the Court's refusal to provide review of the petitioner's sentencing. I would treat the petition as a motion for habeas corpus relief. The trial court imposed a sentence of imprisonment on the petitioner, relying in part on conclusions drawn from factual matters contained in a presentence investigation. The petitioner took issue with the facts relied on, but had no opportunity to rebut, explain, or deny the information.
I believe that the principles announced in Gardner v. Florida, 430 U.S. 349, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977), should apply to all sentencing proceedings involving the possibility of imposition of criminal punishment. Under the constitutional concepts of equal protection of the law, due process of law and the right to confront one's accusers, I think that a writ of habeas corpus should be granted with an opportunity afforded to the petitioner to rebut the allegations made against him in the presentence investigation report. I further dissent for the reasons expressed in my dissenting opinion in Nelson v. State, 396 So.2d 1130 (1981).