Hankerson v. State 326 So. 2d 200

PER CURIAM.

Affirmed. State v. Anderson, 270 So.2d 353 (Fla.1972).

WALDEN, C. J., and DOWNEY, J., concur.

MAGER, J., concurring specially.

MAGER, Judge

(specially concurring).

Although I concur in the majority opinion of affirmance, my review of the appellate record reflects that the trial court may have imposed a greater sentence on the defendant because he availed himself of his constitutional right of a trial by jury. The imposition of a sentence under these circumstances is constitutionally impermissible. See Weathington v. State, 262 So.2d 724 (Fla.App. 3rd, 1972). While the colloquy between the trial judge, defendant and defense counsel at the time of sentencing clearly reflects a discussion of this proposition, for some inexplicable reason the public defender did not raise this as an issue for appellate consideration. See however Rule 6.16, F.A.R. Without suggesting any preconceived view that this issue will prove to be a meritorious one, it would seem that some consideration should be given by counsel to the advisability of seeking post-conviction relief; if such relief is sought the matter can be fully presented for appropriate treatment.