       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FOURTH DISTRICT

                           DERRICK CULVER,
                              Appellant,

                                     v.

                          STATE OF FLORIDA,
                               Appellee.

                               No. 4D14-285

                              [April 22, 2015]

  Appeal from the Circuit Court for the Nineteenth Judicial Circuit, St.
Lucie County; Gary L. Sweet, Judge; L.T. Case No. 562010CF003963.

   Margaret A. Benton, Fort Pierce, for appellant.

  Pamela Jo Bondi, Attorney General, Tallahassee, and Melynda L.
Melear, Assistant Attorney General, West Palm Beach, for appellee.

PER CURIAM.

   Rather than continue with his trial, appellant agreed to an open plea to
the court one day before his twenty-first birthday in the hope that the court
would sentence appellant as a youthful offender for his crimes. In doing
so, his counsel waived the preparation of a presentence investigation
report, because to obtain one would push sentencing past his birthday
and thus eliminate the court’s ability to impose a youthful offender
sentence. After the court rejected a youthful offender sentence and
sentenced him to a substantial prison sentence, appellant moved to vacate
his plea, claiming he was entitled to a presentence investigation before the
court could sentence him. The court denied the motion.

    We affirm. Although appellant contends that his right to a presentence
investigation could not be waived by his attorney, we rejected this same
argument in Ortiz v. State, 9 So. 3d 774, 776 (Fla. 4th DCA 2009), where
we held that the preparation of the presentence investigation in a habitual
offender case was a procedural right which did not require a defendant’s
personal waiver. The same analysis applies to waiver of the presentence
investigation required by Florida Rule of Criminal Procedure 3.710. While
Albarracin v. State, 112 So. 3d 574 (Fla. 4th DCA 2013), relied on by
appellant, does state that a presentence investigation is required for
youthful offender sentencing, that case did not involve a waiver by defense
attorney.

   Had the presentence investigation not been waived, its preparation,
which usually takes sixty days, would have prevented the court from
imposing a youthful offender sentence, as appellant would have passed
his twenty-first birthday. Moreover, appellant did present evidence to the
court of his background and character, so the court was able to weigh the
absence of prior criminal history against the nature of the crimes
committed. In doing so, the court clearly concluded, on the record, that
because of the nature of the crimes, youthful offender sentencing was not
appropriate.

   Affirmed.

WARNER, GROSS and FORST, JJ., concur.

                           *         *        *

   Not final until disposition of timely filed motion for rehearing.




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