BOBBY MYRICK, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The Florida District Court of Appeal vacated defendant's sentence for breaking and entering with intent to commit grand larceny and two counts of uttering a forged instrument because the trial court failed to follow sentencing guidelines procedures by not obtaining a guidelines scoresheet before imposing sentence.
The court vacated the sentence and remanded for resentencing because the trial court did not follow the mandatory sentencing guidelines procedures. A court cannot properly depart from guidelines it never considered, and failure to obtain a scoresheet deprives the court of the information necessary to decide whether to depart from the guidelines.
[1] A trial court must follow sentencing guidelines procedures, including the preparation of a scoresheet, when sentencing under the guidelines.
[2] A trial court cannot depart from sentencing guidelines without first knowing the presumptive sentence provided by a scoresheet.
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Join FLexlaw to unlock all legal intelligence“The sentencing guidelines were promulgated to provide actual guidance to trial courts in sentencing and not simply to be an after-the-fact reference source by which to ascertain whether a trial court is satisfied with the guidelines.”
Establishes that guidelines must be considered prospectively, not retrospectively, to serve their intended purpose
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Join FLexlaw to unlock all legal intelligenceDefendant Myrick was convicted of breaking and entering with intent to commit grand larceny and two counts of uttering a forged instrument. The trial …
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PER CURIAM.
We vacate defendant’s sentence for breaking and entering with intent to commit grand larceny and for two counts of uttering a forged instrument. We remand for resentencing.
Although the sentencing guidelines were applicable because defendant elected to be sentenced under the guidelines, the trial court did not follow the guidelines procedures. See Fla.R.Crim.P. 3.701 d. The court sentenced defendant without the benefit of a guidelines scoresheet which would have provided a presumptive sentence. Not knowing the presumptive sentence, the court was without sufficient information to decide whether to depart from the guidelines.
Our conclusion is not changed by the facts that the court gave reasons which are now argued to be sufficient to justify a departure from the guidelines and that the court commented that if, after a scoresheet was provided, he determined the guidelines presumptive sentence was heavy enough, he might modify the sentence. We could not accept an argument that under those circumstances there was harmless error. That would put the cart before the horse. The sentencing guidelines were promulgated to provide actual guidance to trial courts in sentencing and not simply to be an after-the-fact reference source by which to ascertain whether a trial court is satisfied with the guidelines.
Also, when a trial court disregards the guidelines and imposes a sentence which exceeds the presumptive guidelines sentence, it would seem illogical to conclude that the court gave clear and convincing reasons for departing from the guidelines under rule 3.701 d 11. We could not conclude that a court properly departed from the guidelines when the court had nothing under consideration from which to depart. Under those circumstances the purpose of the guidelines — to promote uniformity of sentencing by the trial courts of similarly situated defendants — would be not only not furthered but would be thwarted. The failure of defendant to make a contemporaneous objection does not preclude appellate review. See State v. Rhoden, 448 So. 2d 1013 (Fla.1984); Mitchel v. State, 458 So. 2d 10 (Fla. 1st DCA 1984).
We remand for resentencing consistent with this opinion.
OTT, A.C.J.; and DANAHY and LEHAN, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (28 total)
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State v. Whitfield, 487 So. 2d 1045 (Fla. 1986)…ing judge,” the district court held “that a defendant’s failure to contemporaneously object upon imposition of a sentence does not preclude appellate review of sentencing errors. Mitchell v. State, 458 So. 2d 10 (Fla. 1st DCA 1984); Myrick v. State, 461 So. 2d 1359 (Fla. 2d DCA 1984); Ramsey v. State, 462 So. 2d 875 (Fla. 2d DCA 1985); Tucker v. State, 464 So. 2d 211 (Fla. 3d DCA 1985).” Whitfield, 471 So. 2d at 634. However, the district court was apparently troubled, and rightly so, by the implications of a…
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Erickson v. State, 565 So. 2d 328 (Fla. 4th DCA 1990)…. State, 493 So. 2d 82, 83 (Fla. 1st DCA 1986). The rationale for the rule is that the trial court might have imposed a different sentence had it had the benefit of a corrected score-sheet. See Dawson v. State, 532 So. 2d at 90. Cf. Myrick v. State, 461 So. 2d 1359 (Fla. 2d DCA 1984). Thus, when a discrepancy concerning the scoresheet is brought to the sentencing court’s attention, the court should resolve the discrepancy and correct the scoresheet to reflect the accurate numbers. See Mitchell v. State, 507 So…
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Huhn v. State, 511 So. 2d 583 (Fla. 4th DCA 1987)…eversal of the sentence. E.g., Kolbe v. State, 480 So. 2d 694, 695 (Fla. 4th DCA 1985) (“It was also reversible error not to have a guidelines scoresheet available at sentencing. Finklea v. State, 471 So. 2d 608 (Fla. 1st DCA 1985); Myrick v. State, 461 So. 2d 1359 (Fla. 2d DCA 1984).”) Because the judgment is reversed for errors discussed earlier, the irregularity of the sentencing becomes moot. However, we wish to avoid future error. First, it appears that sentencing was done without a prepared guidelines w…
Previewing 3 of 28 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. Learnhart Rhoden, 448 So. 2d 1013 (Fla. 1984)
- Mitchell v. State, 458 So. 2d 10 (Fla. 1st DCA 1984)