ROBERT EDWIN REICHMAN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Robert Reichman appealed a 25.5-year sentence imposed as a general sentence under Florida's sentencing guidelines. The court reversed and remanded for resentencing, finding that the trial court erred by imposing a general sentence, failing to include all pending counts on the scoresheet, and failing to provide written reasons for departure from guidelines.
The trial court erred in three respects: (1) general sentences are improper under Florida law; (2) the pending nolo contendere count should have been calculated on the scoresheet as an additional offense; and (3) written reasons for departure from guidelines are required, and an oral explanation is insufficient.
[1] Imposition of general sentences by a trial court is improper.
[2] A sentence must be imposed for each offense, and the total sentence cannot exceed the total guideline sentence unless a written reason for departure is given.
Previewing 2 of 5 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“First, the imposition of general sentences by a trial court is improper.”
Establishes the foundational error that general sentences violate Florida law and sentencing rules.
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Join FLexlaw to unlock all legal intelligenceReichman was charged with five counts arising from a single criminal episode: attempted first-degree murder with a firearm, resisting arrest with viol…
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SHIVERS, Judge.
Defendant appeals a 25V2 year general sentence, imposed pursuant to the sentencing guidelines. We reverse and remand for resentencing pursuant to instructions.
The defendant was charged by information with (1) attempted first-degree murder with a firearm, (2) resisting arrest with violence, (3) possession of a firearm by a convicted felon, (4) possession of a forged driver’s license, and (5) unlawful discharge of a firearm. All five counts were alleged to have arisen out of a single criminal episode. A jury trial was held on all counts except Count 3, and defendant was found guilty of attempted second-degree murder with a firearm and of Counts 2, 4, and 5 as charged. Defendant pled nolo contendere to Count 3.
A single sentencing guideline scoresheet was prepared utilizing the attempted second-degree murder conviction as the “primary offense at conviction” and Counts 2, 4, and 5 as “additional offenses at conviction.” The scoresheet as calculated reflected a total of 225 points and a recommended range of 12 to 17 years’ incarceration. The trial court chose to depart from the recommended range and imposed a general sentence of 25¥2 years, combining all 5 counts. The court’s reasons for departure were stated orally at the sentencing hearing but did not appear in writing on the sentencing guideline scoresheet.
Defendant argues, on appeal, that the court erred in imposing a general sentence. We agree not only with defendant’s argument, but find that a number of errors were made in computing defendant’s sentence.
First, the imposition of general sentences by a trial court is improper. Dorfman v. State, 351 So. 2d 954 (Fla.1977); Carroll v. State, 361 So. 2d 144 (Fla.1978); section 775.021(4), Fla.Stat. Further, the sentencing guidelines contain their own statement against general sentences:
Sentencing for separate offenses: A sentence must be imposed for each offense. However, the total sentence cannot exceed the total guideline sentence unless a written reason is given.
Rule 3.701(d)(12), Fla.R.Crim.P. Second, Rule 3.701(d)(1) states, in pertinent part:
One guideline scoresheet shall be prepared for each defendant covering all offenses pending before the court for sentencing.
Further, Rule 3.701(d)(4) states:
Additional offenses at conviction: All other offenses for which the offender is convicted and which are pending before the court shall be scored as additional offenses based upon their degree and the number of counts of each.
Although the sentencing of defendant on his plea of nolo contendere to Count 3 was pending at the time of the sentencing hearing, that count was not calculated into the scoresheet as an “additional offense at conviction.” Proper inclusion of Count 3, a second-degree felony, would add three points to the scoresheet.
Third, we find that the trial court erred in failing to state its reasons for departure in writing. This court has held that Rule 3.701(d)(ll) requires a separate written articulation of reasons for departure in that a transcript of the court’s oral explanation is not sufficient. Jackson v. State, 454 So. 2d 691 (Fla. 1st DCA 1984); Harris v. State, 465 So. 2d 545 (Fla. 1st DCA 1985).
Accordingly, we reverse and remand for resentencing in accordance with the following instructions:
(1) that Count 3 be calculated on the scoresheet as an additional offense at conviction;
(2) that separate sentences be imposed for each of the five charges; and
(3) that the total of the five separate sentences not exceed the total guidelines sentence calculated on the scoresheet unless clear and convincing reasons for departure are stated in writing, pursuant to Rule 3.701(d)(ll), Fla.R.Crim.P. REVERSED and REMANDED.
ERVIN, C.J., and JOANOS, J., concur.
SHIVERS, Judge.
Appellant, defendant below, has raised two points by way of motion to clarify, both of which we find have merit. Our earlier opinion is thus modified as follows.
The first point involves our instruction to add three points to the scoresheet total. The appellant was originally charged by information with five counts, was found guilty of Counts 1, 2, 4, and 5, and pled nolo contendere to Count 3. Count 1, attempted second-degree murder with a firearm, was properly calculated on the score-sheet as the primary offense of conviction. Section 2 of the scoresheet, however, (“additional offenses at conviction”) reflected only three of the four other pending offenses — one second-degree felony, one third-degree felony, and one misdemeanor. The appellant’s four additional offenses actually included one misdemeanor (section 790.15), one second-degree felony (section 790.23), and two third-degree felonies (sections 843.01 and 322.212). Therefore, Section 2 of the scoresheet should contain an additional third-degree felony, instead of an additional second-degree felony as we held in our June 13, 1985 opinion.
Second, the record on appeal indicates that the appellant, at the sentencing hearing below, disputed a number of the prior convictions calculated on the scoresheet, and argued that the point total should be reduced from 225 to 210. Although the trial judge appeared to accept appellant’s arguments, no finding was made as to the correct total, possibly because the recommended range would have been 12 to 17 years under either total and because the trial court intended to depart from the guidelines. The addition of two points under Section 2, however, as mandated by this modified opinion, would place appellant in the next higher sentencing cell, making it necessary for the correct number of prior convictions to be determined.
Therefore, our opinion stands, but is modified in two respects. First, the trial court is instructed, on remand, to add two points to Section 2 of the scoresheet, instead of three. Second, the trial court is instructed to determine whether the number of points calculated under Section 3 of the scoresheet is correct, or whether that number should be reduced as argued by the appellant at the sentencing hearing. The other instructions contained in our opinion are to remain in effect.
ERVIN and JOANOS, JJ., concur.
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Gibson v. Fla. Dep't OF Corr., 828 So. 2d 422 (Fla. 1st DCA 2002)…. State, 674 So. 2d 802, 802-03 (Fla. 3d DCA 1996); Valiente v. State, 605 So. 2d 1294, 1294-95 (Fla. 3d DCA 1992); Lewis v. State, 567 So. 2d 50, 51 (Fla. 5th DCA 1990); Brown v. State, 500 So. 2d 649, 650-51 (Fla. 1st DCA 1986); Reichman v. State, 473 So. 2d 1324, 1325 (Fla. 1st DCA 1985). The majority opinion rests on a misreading of the opinion in Tripp. The decision in Cook v. State, 645 So. 2d 436 (Fla.1994), does not go beyond the decision in Tripp; the opinion in Cook merely reiterates the Tripp ratio…1 / 2
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Brown v. State, 500 So. 2d 649 (Fla. 1st DCA 1986)…3.701(d)(12) requires imposition of a [*651] separate sentence for each offense for which one accused is adjudicated guilty. In addition to the directive set forth in the rule, case law proscribes imposition of a general sentence. Reichman v. State, 473 So. 2d 1324 (Fla. 1st DCA 1985), citing Carroll v. State, 361 So. 2d 144 (Fla.1978); Dorfman v. State, 351 So. 2d 954 (Fla.1977). Accordingly, we affirm as to point one, and reverse and remand as to point two, with directions to the trial judge to impose separ…
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Mortimer v. State, 490 So. 2d 93 (Fla. 3d DCA 1986)…PER CURIAM. We hold that notations on a guidelines sentencing score sheet will not suffice as a written order stating reasons to enhance a sentence. State v. Jackson, 478 So. 2d 1054 (Fla.1985), Reichman v. State, 473 So. 2d 1324 (Fla. 1st DCA 1985); Rule 3.701(d)(11) Fla.R.Crim.P. Therefore the sentence under review is reversed and the matter is returned to the trial court for resentencing. Reversed and remanded.…
Authorities Cited
- Dorfman v. State, 351 So. 2d 954 (Fla. 1977)
- Jackson v. State, 454 So. 2d 691 (Fla. 1st DCA 1984)
- Carroll v. State, 361 So. 2d 144 (Fla. 1978)
- Harris v. State, 465 So. 2d 545 (Fla. 1st DCA 1985)