District Court of Appeal of Florida, Fourth District.
Richard L. Jorandby, Public Defender, West Palm Beach, Frank B. Kessler and Tatjana Ostapoff, Asst. Public Defenders, and Jerry Schwartz, Legal Intern, West Palm Beach, for appellant.
Robert L. Shevin, Atty. Gen., Tallahassee, and Basil S. Diamond, Asst. Atty. Gen., West Palm Beach, for appellee.
ANSTEAD, Judge,
This is an appeal from a sentence entered after a conviction and sentence for breaking and entering. The defendant appeals, *1011 asserting as error the trial court's refusal to allow disclosure of the confidential portion of the presentence investigation. We find that the trial judge was correct in declining to release the confidential portion of the report but we remand for a new sentencing hearing on the basis that the defendant was not provided all the factual material contained in the presentence investigation prior to sentencing.
Rule 3.713, F.R.C.P. provides that the defendant be furnished all factual material in the presentence investigation a reasonable time prior to sentencing. At the sentencing hearing the trial court disclosed to the defendant's counsel certain factual information contained in the confidential portion of the presentence investigation but not in the non-confidential portion, and gave the defendant an opportunity to explain such information if he wished. The defendant declined to explain at the sentencing, claiming surprise and an inadequate opportunity to respond. Because the information disclosed may be characterized as factual material we find that the defendant was entitled to such information a reasonable time prior to sentencing. Guglielmo v. State, 318 So. 2d 526 (Fla. 1st DCA 1975); McCormack v. State, 332 So. 2d 117 (Fla. 1st DCA 1976).
This problem could have been avoided had the Parole and Probation Commission included the factual information involved in the non-confidential portion of the report. If this is not done an unfair burden is placed on the trial judge to determine before sentencing whether there is any factual material in the confidential portion of the investigation that must be disclosed to the defendant.
This cause is hereby remanded for resentencing with directions that the trial court again review the confidential portion of the presentence investigation and thereafter disclose to the defendant, a reasonable time prior to sentencing, any factual material contained therein not found in the non-confidential portion.
ALDERMAN and DAUKSCH, JJ., concur.
