Davenport v. State (317 So. 2d 851, 1975)

MILLS, Judge.

The question raised by this appeal is whether the trial court erred in imposing a sentence on Davenport without the benefit of a presentence investigation and recommendation where the record does not show a previous felony offense. The trial court erred. Angel v. State, 305 So.2d 283 (Fla.App.1st, 1974).

The record in this case is silent as to a previous felony offense. Rule 3.170, Florida Rules of Criminal Procedure, provides that no sentence shall be imposed on a defendant found guilty of a first felony offense until a presentence investigation and recommendation has been received and considered by the sentencing judge. As the trial court’s error was a mere defect in sentencing, reversal is not required.

This case is remanded with the following directions:

1. the trial court may hold a hearing at which it must be established that the defendant has been convicted previously of a felony, and if he has been convicted, reimpose the sentence, or

2. the trial court may vacate the sentence, then obtain a presentence investigation and recommendation, consider them, and resentence the defendant.

BOYER, C. J., and McCORD, J., concur.