KATHERINE S. SISSON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Katherine Sisson appealed her sentence imposed outside the Sentencing Guidelines range, arguing the trial court failed to consider the guidelines despite her affirmative election. The Florida District Court of Appeal reversed and remanded because the trial court erroneously believed the guidelines were inapplicable and failed to provide written reasons for departing from the recommended sentence range.
The relevant date for determining guidelines applicability is the sentencing date, not the offense date, so guidelines must be considered when sentencing occurs after their effective date. Reasons for departing from guidelines must be expressed in writing by the trial judge; transcription of oral statements does not satisfy this requirement.
[1] The applicability of Sentencing Guidelines is determined by the date of sentencing, not the date of the offense.
[2] A trial court must consider the recommended sentence range of the Sentencing Guidelines when a defendant affirmatively elects to be sentenced thereunder.
Previewing 2 of 3 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“The proper date to consider in determining their applicability is not that of the offense but of the sentencing for that offense.”
Establishes the controlling legal principle for determining when Sentencing Guidelines apply
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Join FLexlaw to unlock all legal intelligenceSisson's offense occurred prior to the effective date of the Sentencing Guidelines, but her sentencing occurred after the guidelines became effective.…
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MILLS, Judge.
Sisson appeals from the imposition of sentence outside the range recommended by the Sentencing Guidelines, Rule 3.701, Florida Rules of Criminal Procedure. She contends that the trial court did not consider the guidelines, despite her affirmative election to be sentenced thereunder or, in the alternative, that the Court departed from the guidelines without clear and convincing reasons stated in writing, as required by the rules. Because the record indicates uncertainty in the mind of the trial judge both as to applicability of the guidelines and to the proper form in which to express his reasons for the sentence imposed, we reverse and remand for entry of a sentencing order which comports with the requirements of the rules and the applicable case law.
It is clear that Sisson has the right, given her affirmative election, to have the recommended sentence range found in the guidelines considered prior to the imposition of sentence. The record reflects the possibility that, because Sisson’s offense occurred prior to the effective date of the guidelines, the trial judge believed the guidelines were inapplicable. This is incorrect. The proper date to consider in determining their applicability is not that of the offense but of the sentencing for that offense. Section 921.001(4)(a), Florida Statutes (1983). Therefore, because the sentencing herein occurred after the effective date, the guidelines should be taken into account when imposing sentence.
If a determination is made to depart from the recommended sentence range, the reasons therefor must appear in writing. Rule 3.701(d)(ll), Fla.R.Crim.P. The transcription of reasons stated orally at the sentencing hearing does not meet this requirement. See Jackson v. State, 454 So. 2d 691 (Fla. 1st DCA 1984); Oden v. State, 463 So. 2d 313 (Fla. 1st DCA 1984) conflict certified; Harris v. State, 465 So. 2d 545 (Fla. 1st DCA 1985) conflict certified. Therefore, all reasons which the trial judge wishes to express as justification for any departure from the guidelines must be made by him in writing.
The sentence imposed herein is reversed and the case remanded for further action consistent with this opinion.
NIMMONS, J., and PEARSON, TILLMAN, (Ret.) Associate Judge, concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Jackson v. State, 454 So. 2d 691 (Fla. 1st DCA 1984)
- Oden v. State, 463 So. 2d 313 (Fla. 1st DCA 1984)
- Harris v. State, 465 So. 2d 545 (Fla. 1st DCA 1985)