HERMAN JOHNSON, JR., APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
Herman Johnson appealed his sentence for robbery with a firearm imposed after a guilty plea. The appellate court vacated the sentence because the trial court failed to provide a written statement of reasons for departing from the presumptive guideline sentence as required by Florida's sentencing rules.
The trial court's oral pronouncement of reasons for departure from the presumptive guideline sentence does not satisfy the rule's requirement for a written statement. A written statement is expressly required and essential; oral pronouncement alone is insufficient.
[1] A written statement of reasons is required for a departure from a presumptive guideline sentence, and an oral pronouncement is insufficient.
[2] Circumstances surrounding an offense, such as placing innocent parties in extreme danger during a robbery, constitute a sufficient reason for departing from a presumptive…
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“A written statement is expressly required by Fla. R.Crim.P. 3.701(d)(ll). In Jackson v. State, 454 So.2d 691 (Fla. 1st DCA 1984), at footnote 2 it was indicated that such written statement is essential and an oral pronouncement will not suffice.”
Establishes the mandatory nature of the written statement requirement and rejects reliance on oral pronouncement alone.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceJohnson pled guilty to robbery with a firearm for a 1982 offense and expressly elected to be sentenced pursuant to Fla.R.Crim.P. 3.701. The trial cour…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Written Reasons For Departure cases and more on FLexlaw
WENTWORTH, Judge.
Appellant seeks review of a sentence imposed, after a guilty plea, for the offense of robbery with a firearm. Although appellant has raised several issues on appeal, we find the only point of reversible error to be the court’s failure to provide a written statement of reasons for departing from the presumptive guideline sentence established pursuant to Fla.R.Crim.P. 3.701. For this limited reason we therefore vacate the sentence imposed.
Appellant pled guilty to a charge of robbery with a firearm for a 1982 offense and expressly elected to be sentenced pursuant to the provisions of Fla.R.Crim.P. 3.701. The application of Rule 3.701 in these circumstances requires only that appellant “affirmatively selects” to be sentenced pursuant to the rule, see § 921.001(4)(a), Florida Statutes, and such affirmative selection does not require any advisement by the court as to parole ineligibility. See Jones v. State, 459 So. 2d 1151 (Fla. 1st DCA 1984); Coates v. State, 458 So. 2d 1219 (Fla. 1st DCA 1984); Moore v. State, 455 So. 2d 535 (Fla. 1st DCA 1984).
In imposing a sentence outside the presumptive guideline range the court noted appellant’s “utter disregard for the property rights [and] welfare and safety” of others. The court further explained that:
... [T]his robbery was out of the ordinary in that three people, not including yourself and co-defendants, were placed in extreme danger .... The amount of money that was taken was substantial. ... [Y]ou not only placed the lives of yourself and your co-defendant in danger but that of innocent parties ....
Such conduct was a sufficient reason for departure from the presumptive guideline sentence, and was properly considered, in accordance with Rule 3.701(b)(3), as “circumstances surrounding the offense.” See Smith v. State, 454 So. 2d 90 (Fla. 2d DCA 1984); Garcia v. State, 454 So. 2d 714 (Fla. 1st DCA 1984); see also Murphy v. State, 459 So. 2d 337 (Fla. 5th DCA 1984).
Appellant asserts that the extent of the departure from the presumptive guideline sentence-in the present case does not correspond wi& the severity of the stated reasons for departure. However, the sentence imposed does not exceed the statutory maximum and the court’s departure from the presumptive guideline sentence is permissibly predicated upon the circumstances of appellant’s offense. No further limitation of the trial court’s sentencing discretion is imposed by either statute or rule, and we therefore-decline to otherwise review the extent of a permissible departure from the presumptive guideline sentence. Accord, Whitlock v. State, 458 So. 2d 888 (Fla. 5th DCA 1984); Hanky v. State, 458 So. 2d 1143 (Fla. 5th DCA 1984); cf., Swain v. State, 455 So. 2d 533 (Fla. 1st DCA 1984).
Although the court did indicate a permissible basis for departing from the presumptive guideline sentence, such reasons were stated orally and no separate written explanation was provided. A written statement is expressly required by Fla. R.Crim.P. 3.701(d)(ll). In Jackson v. State, 454 So. 2d 691 (Fla. 1st DCA 1984), at footnote 2 it was indicated that such written statement is essential and an oral pronouncement will not suffice. Accord, Millett v. State, 460 So. 2d 489 (Fla. 1st DCA 1984); contra, Webster v. State, 461 So. 2d 965 (Fla. 2d DCA 1984); Burke v. State, 456 So. 2d 1245 (Fla. 5th DCA 1984); Harvey v. State, 456 So. 2d 926 (Fla. 4th DCA 1984). The court’s departure from the presumptive guideline sentence thus may not be predicated upon its oral pronouncement; on remand, should the court again depart from the presumptive guideline sentence, it must express the reason for such departure in writing.
Appellant’s sentence is hereby vacated and the cause remanded for resentencing.
MILLS and SHIVERS, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (21 total)
-
Scurry v. State, 472 So. 2d 779 (Fla. 1st DCA 1985)…sented could have easily sustained a conviction of murder in the first degree. We find the reasons numbered one and two are valid reasons to depart from the guidelines. See Garcia v. State, 454 So. 2d 714, 717 (Fla. 1st DCA 1984); Johnson v. State, 462 So. 2d 49 (Fla. 1st DCA 1984). Reason number three was properly considered in accordance with rule 3.701(b)(3), as "circumstances surrounding the offense.” Johnson v. State, 462 So. 2d at 50. Reason number four is an impermissible reason for a departure from…
-
Enrico Ehrenshaft v. State, 478 So. 2d 842 (Fla. 1st DCA 1985)…statement under State v. Jackson, 478 So. 2d 1054 (Fla.1985). See also Edwins v. State, 475 So. 2d 1031 (Fla. 1st DCA 1985); Schmidt v. State, 468 So. 2d 1112 (Fla. 1st DCA 1985); Oden v. State, 463 So. 2d 313 (Fla. 1st DCA 1984); Johnson v. State, 462 So. 2d 49 (Fla. 1st DCA 1984) Jackson v. State, 454 So. 2d 691 (Fla. 1st DCA 1984). In addition, we conclude that in this case, the sentencing court may not depart from the recommended sentence beyond the one cell increase permitted by that portion of Rule 3…
-
Brown v. State, 464 So. 2d 193 (Fla. 1st DCA 1985)…This issue has been addressed in several recent decisions of this court. Jones v. State, 459 So. 2d 1151 (Fla. 1st DCA 1984); Coates v. State, 458 So. 2d 1219 (Fla. 1st DCA 1984); Moore v. State, 455 So. 2d 535 (Fla. 1st DCA 1984); Johnson v. State, 462 So. 2d 49 (Fla. 1st DCA 1984). In each of these cases, it was held that if a defendant “affirmatively selects” to be sentenced pursuant to the guidelines, it is not necessary that there be a showing that he voluntarily and intelligently waived his parole elig…
Previewing 3 of 21 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited (15 total)
- Jackson v. State, 454 So. 2d 691 (Fla. 1st DCA 1984)
- Smith v. State, 454 So. 2d 90 (Fla. 2d DCA 1984)
- Onelia Garcia and Matthew Lee Wilson v. State, 454 So. 2d 714 (Fla. 1st DCA 1984)
- Swain v. State, 455 So. 2d 533 (Fla. 1st DCA 1984)
- Moore v. State, 455 So. 2d 535 (Fla. 1st DCA 1984)
- Burke v. State, 456 So. 2d 1245 (Fla. 5th DCA 1984)
- Murphy v. State, 459 So. 2d 337 (Fla. 5th DCA 1984)
- Hankey v. State, 458 So. 2d 1143 (Fla. 5th DCA 1984)
- Millett v. State, 460 So. 2d 489 (Fla. 1st DCA 1984)
- William "Doc" Coates v. State, 458 So. 2d 1219 (Fla. 1st DCA 1984)