RAY BRADDOCK, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that a defendant's failure to contemporaneously object to a departure from sentencing guidelines does not preclude appellate review of the departure.
Braddock was sentenced as a youthful offender after the exemption for such sentences from sentencing guidelines was removed. The trial court departed …
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JOANOS, Judge.
Appellee’s motion for rehearing or rehearing en banc is denied, but the motion for clarification is granted and the following opinion is substituted for the previously issued opinion which is withdrawn.
Braddock appeals from his judgment and sentence as a youthful offender, contending the trial court improperly exceeded the sentencing guidelines without expressing clear and convincing reasons for the departure. We agree and reverse.
Braddock was sentenced on 2 July 1984, after the Supreme Court of Florida deleted the committee notes which exempted youthful offender sentences from the guidelines and the legislature ratified that deletion. Sentences imposed after 1 July 1984 are no longer exempt from the requirement of written clear and convincing reasons for departure from the sentencing guidelines. The Florida Bar: Amendment to Rules of Criminal Procedure (3.701, 3.988—Sentencing Guidelines), 468 So. 2d 220 (Fla.1985); E.W. v. State, 469 So. 2d 914 (Fla. 1st DCA 1985).
The state argues that Braddock’s failure to contemporaneously object to the sentencing error precludes appellate review, citing Ford v. Wainwright, 451 So. 2d 471 (Fla.1984). Ford is inapplicable as it involved the failure to contemporaneously object to jury instructions given during the sentencing phase. Braddock’s failure to contemporaneously object to the trial court’s departure from the sentencing guidelines does not foreclose the issue on appeal. Rhoden v. State, 448 So. 2d 1013 (Fla.1984); Mitchell v. State, 458 So. 2d 10 (Fla. 1st DCA 1984).
Accordingly, we reverse and remand for correction of the sentence to comply with the sentencing guidelines or publication of clear and convincing reasons for departure.
ERVIN and SHIVERS, JJ., concur.
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Elvin Vega v. State, 498 So. 2d 1294 (Fla. 5th DCA 1986)…8 — Sentencing Guidelines), 451 So. 2d 824 (Fla.1984). Therefore, sentences imposed after July 1,1984, are no longer exempt from the requirement of written clear and convincing reasons for departure from the sentencing guidelines. Braddock v. State, 472 So. 2d 875 (Fla. 1st DCA 1985), review denied, 482 So. 2d 349 (Fla.1986); see also § 958.04(3), Fla.Stat. (1985).1 In Hawks v. [*1296] State, 475 So. 2d 1001 (Fla. 5th DCA 1985), this court held that the valid reasons stated by the trial court for imposing the…
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State v. Nealy, 532 So. 2d 1117 (Fla. 2d DCA 1988)…nificant that other district courts besides the fifth district have held that the trial court must utilize the sentencing guidelines when imposing a youthful offender sentence. Hudson v. State, 475 So. 2d 1018 (Fla. 4th DCA 1985); Braddock v. State, 472 So. 2d 875 (Fla. 1st DCA 1985). For the reasons I have expressed above, I would also affirm the sentencing order. . The legislature amended section 958.04, Florida Statutes (1985), to read as follows: 958.04 Judicial disposition of youthful offenders.— [*11…
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Gause v. State, 491 So. 2d 320 (Fla. 2d DCA 1986)…y 1, 1984, must conform to the sentencing guidelines. The Florida Bar: Amendment to Rules of Criminal Procedure (3.701, 3.988—Sentencing Guidelines), 451 So. 2d 824 (Fla.1984); Hudson v. State, 475 So. 2d 1018 (Fla. 4th DCA 1985); Braddock v. State, 472 So. 2d 875 (Fla. 1st DCA 1985). Rule 3.701(d), Florida Rules of Criminal Procedure, requires that a guidelines score-sheet be prepared for each defendant which must include all offenses pending before the court for sentencing. The fact that the trial court p…
Previewing 3 of 5 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)
- THE FLA. BAR: AMENDMENT TO RULES OF CRIM. PROCEDURE (3.701, 468 So. 2d 220 (Fla. 1985)
- Ford v. Louie L. Wainwright, 451 So. 2d 471 (Fla. 1984)
- THE Florida BAR v. Mike, 451 So. 2d 471 (Fla. 1984)
- E.W. v. State, 469 So. 2d 914 (Fla. 1st DCA 1985)