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Cheatham v. State

District Court of Appeal of Florida, Third District
Jun 20, 1977
346 So. 2d 1218 (Fla. Dist. Ct. App. 1977)

Summary

stating that "the court is not compelled under the rules to grant defendant a continuance prior to sentencing upon his motion therefor"

Summary of this case from Green v. State

Opinion

No. 76-713.

May 24, 1977. Rehearing Denied June 20, 1977.

Appeal from the Circuit Court, Dade County, Ellen J. Morphonios, J.

Bennett H. Brummer, Public Defender and Thomas G. Murray, Asst. Public Defender, for appellant.

Robert L. Shevin, Atty. Gen. and Ira N. Loewy, Asst. Atty. Gen., for appellee.

Before BARKDULL, HAVERFIELD and NATHAN, JJ.


Defendant, Arthur Cheatham, was informed against for aggravated battery, tried by jury, found guilty of aggravated assault and sentenced to five years in the state penitentiary.

Defendant first urges as reversible error the trial court's denial of his motion for continuance of hearing on his sentencing in violation of Fla.R.Crim.P. 3.720(b).

While it is undisputed that this rule requires a court, before sentencing, to afford a defendant the opportunity to present matters in mitigation of sentence, the court is not compelled under the rules to grant defendant a continuance prior to sentencing upon his motion therefor. The general rule is that the granting or denial of a motion for continuance is within the discretion of the trial court, and the court's action with respect thereto will be reversed only upon a showing of a palpable abuse of discretion. See Douglas v. State, 216 So.2d 82 (Fla.3d DCA 1968); Mills v. State, 280 So.2d 35 (Fla.3d DCA 1973). A review of the record reflects no such abuse of discretion. Defendant was given an opportunity to submit evidence in mitigation of sentence, and we find the trial court fully complied with the requirements of Fla.R. Crim.P. 3.720.

Mask v. State, 289 So.2d 385 (Fla. 1973).

Defendant secondly contends that the court erred in reinstructing the jury, at its request, as to the elements of aggravated battery, aggravated assault and battery without also reinstructing the jury on reasonable doubt. We cannot agree.

It is proper for a trial judge to limit the repetition to the charges requested; however, the repeated charges should be complete on the subject involved. See Hedges v. State, 172 So.2d 824 (Fla. 1965). In the case sub judice the trial judge repeated the charges requested by the jury and these repeated charges were complete on the subject involved. The charges on reasonable doubt and acquittal were not essential to a complete and full instruction on the repeated charges. Cf. Bristow v. State, 338 So.2d 553 (Fla.3d DCA 1976).

Judgment of conviction and sentence affirmed.


Summaries of

Cheatham v. State

District Court of Appeal of Florida, Third District
Jun 20, 1977
346 So. 2d 1218 (Fla. Dist. Ct. App. 1977)

stating that "the court is not compelled under the rules to grant defendant a continuance prior to sentencing upon his motion therefor"

Summary of this case from Green v. State

In Cheatham the court held that the trial court's denial of defendant's motion for a continuance prior to sentencing was not an abuse of discretion, and the court had fully complied with the requirements of Fla.R.Crim.P. 3.720.

Summary of this case from Small v. State
Case details for

Cheatham v. State

Case Details

Full title:ARTHUR CHEATHAM, APPELLANT, v. THE STATE OF FLORIDA, APPELLEE

Court:District Court of Appeal of Florida, Third District

Date published: Jun 20, 1977

Citations

346 So. 2d 1218 (Fla. Dist. Ct. App. 1977)

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