Opinion
No. 74-586.
October 10, 1975. On Rehearing December 19, 1975.
Petition for Writ of Habeas Corpus granted delayed full appellate review; Court of Record, Broward County; M. Daniel Futch, Jr., Judge.
Richard L. Jorandby, Public Defender, and Elliot R. Brooks and Channing Brackey, Asst. Public Defenders, West Palm Beach, for petitioner.
Robert L. Shevin, Atty. Gen., Tallahassee, and Anthony J. Golden, Asst. Atty. Gen., West Palm Beach, for respondent.
On petition for writ of habeas corpus we granted petitioner delayed full appellate review of (1) a judgment adjudging him guilty of (a) assault with intent to commit murder in the second degree and (b) attempted robbery, and (2) consecutive sentences of 15 years and 5 years. Having now considered the briefs and record, and having found no error, we affirm the judgment and sentences.
WALDEN, C.J., and OWEN and DOWNEY, JJ., concur.
ON PETITION FOR REHEARING
During the pendency of this appeal, upon motion of the state we struck petitioner's Point II from his brief. In that point petitioner contended that the trial court erred in pronouncing sentence without first obtaining a presentence investigation as required by Rule 3.710, RCrP, because petitioner was under the age of 18 years. The thrust of the state's motion was that at the time petitioner was sentenced there was no requirement that the trial judge obtain a presentence investigation prior to sentencing a felon under the age of 18 years. We now recognize our error in striking that point from petitioner's brief.
We are most reluctant to reverse a trial judge for not taking some action not required of him at the time. However, we are obligated by precedent to apply the law as it exists at the time the case is decided in this court. Collins v. Wainwright, Fla. App. 1975, 311 So.2d 787.
Accordingly, our opinion published October 10, 1975, is vacated and this cause is reversed and remanded with directions to re-sentence petitioner after obtaining a presentence investigation as now mandated by Rule 3.710, RCrP.
WALDEN, C.J., concurs.
OWEN, J., dissents without opinion.