JOSEPH ROUX, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that sentences exceeding the sentencing guidelines range require written reasons for departure.
Appellant was sentenced on two counts of robbery with a firearm to sentences exceeding the permitted range under sentencing guidelines. No written rea…
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SMITH, Judge.
The sole issue in this appeal is whether the trial court erred in imposing sentences exceeding the range permitted under the sentencing guidelines without giving written reasons for the departure. Appellant was sentenced on two counts of robbery with a firearm. He received a sentence of four years’ incarceration for each offense, followed by a period of probation of five years on one count and ten years’ probation on the other, both sentences to run concurrently.
The state concedes error in that under rule 3.701(d)(12), In re Rules of Criminal Procedure (Sentencing Guidelines), 439 So. 2d 848 (Fla.1983), the total sentence “cannot exceed the total guideline sentence unless a written reason is given.” We find the position of the appellant and the state to be correct. At the time appellant was sentenced (November 7, 1983), committee note (d)(12) provided, as a specific limitation on the permissible total length of a split sentence i.e., a combination of state prison and incarceration, that “the total sanction imposed cannot exceed the maximum guideline range” without giving written reasons for the departure.1 439 So. 2d at 852. The maximum guideline range for each of appellant’s offenses is four and one-half years. No reasons for departure were given.
Accordingly, the sentences appealed are reversed and the cause is remanded for resentencing.
WENTWORTH and WIGGINTON, JJ., concur. . The amended committee notes, which have been adopted as a part of the rules, now provide in pertinent part: "The total sanction (incarceration and probation) shall not exceed the terms provided by general law.” The Florida Bar: Amendment to Rules of Criminal Procedure (3.701, 3.988 — Sentencing Guidelines), 451 So. 2d 824 (Fla.1984). According to the view previously expressed by this court, the amended rule cannot be applied retroactively to appellant. Jackson v. State, 454 So. 2d 691 (Fla. 1st DCA 1984).
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Citator
Cited By (19 total)
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Boynton v. State, 473 So. 2d 703 (Fla. 4th DCA 1985)…, 456 So. 2d 1245 (Fla. 5th DCA 1984), and the second district in Brady v. State, 457 So. 2d 544 (Fla. 2d DCA 1984), and Klapp v. State, 456 So. 2d 970 (Fla. 2d DCA 1984), have followed Harvey v. State. The first district, however, in Roux v. State, 455 So. 2d 495 (Fla. 1st DCA 1984), and in Jackson v. State, 454 So. 2d 691 (Fla. 1st DCA 1984), has held that a writing is required. We feel that the better view is to require the trial judge to set forth in writing the reasons for departing from the presumptive…
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Onelia Garcia and Matthew Lee Wilson v. State, 454 So. 2d 714 (Fla. 1st DCA 1984)…d 689 (Fla. 1st DCA 1982) (willful failure to appear for sentencing until after effective date of guidelines not grounds for denial of applicability of guidelines to defendant), and Knight v. State, 455 So. 2d 457 (Fla. 1st DCA 1984); Roux v. State, 455 So. 2d 495 (Fla. 1st DCA 1984) (sentence outside guidelines reversed where trial court failed to state reasons for departure). . As for appellants' contention that the facts adduced below are indicative of an "ordinary” robbery for which they should receive t…
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Mischler v. State, 458 So. 2d 37 (Fla. 4th DCA 1984)…A 1984); Burke v. State, 456 So. 2d 1245 (Fla. 5th DCA 1984); Rutlin v. State, 455 So. 2d 1347 (Fla. 5th DCA 1984); Carter v. State, 452 So. 2d 953 (Fla. 5th DCA 1984); Fleming v. State, 456 So. 2d 1300 (Fla. 2d DCA 1984); Contra Roux v. State, 455 So. 2d 495 (Fla. 1st DCA 1984); Jackson v. State, 454 So. 2d 691 (Fla. 1st DCA 1984). Statutory mandatory minimum sentence takes precedence over guidelines Maynoldi v. State, 456 So. 2d 587 (Fla. 3d DCA 1984).…
Previewing 3 of 19 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- In re Rules of Criminal Procedure (sentencing Guidelines), 439 So. 2d 848 (Fla. 1983)
- THE Fla. BAR: Amendment to Rules of Crim. Procedure (3.701, 451 So. 2d 824 (Fla. 1984)
- Jackson v. State, 454 So. 2d 691 (Fla. 1st DCA 1984)