BYRON D. LAMBERT, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The Florida District Court of Appeal vacated Byron Lambert's sentences and remanded for resentencing because the trial court failed to comply with sentencing guidelines requirements by using a checklist of aggravating factors without discussing the underlying facts or explaining its reasons for departure from the guidelines.
The trial court's failure to discuss the facts and circumstances surrounding the crimes and to announce reasons for departing from the guidelines violated sentencing guidelines requirements and deprived the defendant of the opportunity to object to or refute the reasons for departure. The sentences must be vacated and the case remanded for resentencing, and the trial court should revisit whether all crimes were eligible for the three-year minimum mandatory sentences imposed.
[1] A trial court must articulate specific reasons for departing from sentencing guidelines, supported by the facts and circumstances of the crime or the accused.
[2] Failure to provide a factual basis for aggravating factors checked on a departure checklist deprives the defendant of the opportunity to object or refute the reasons for…
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Join FLexlaw to unlock all legal intelligence“the reasons checked must find their bases in the facts and circumstances surrounding the crime or the accused”
Establishes the requirement that departure reasons must be grounded in specific facts about the crime or defendant
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Join FLexlaw to unlock all legal intelligenceLambert pled guilty to several crimes and received a guidelines scoresheet establishing a sentence of seven to nine years' incarceration. The trial co…
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PER CURIAM.
We vacate appellant’s sentences and remand for resentencing because the trial court failed to comply with sentencing guidelines requirements.
Appellant pled guilty to several crimes, and his guidelines scoresheet established a guidelines sentence of seven to nine years’ incarceration. The court announced its intention to depart from the guidelines. A check list of aggravating circumstances was utilized by the court. Eleven aggravating factors were checked. At the sentencing hearing there was no recital or discussion of the facts and circumstances surrounding the crimes; neither did the trial judge announce or recite his reasons for departing from the guidelines.
The use of a check list of reasons for departure may not automatically compel reversal. See Williams v. State, 471 So. 2d 630 (Fla. 1st DCA 1985). However, the reasons checked must find their bases in the facts and circumstances surrounding the crime or the accused. Brooks v. State, 466 So. 2d 1182 (Fla. 1st DCA 1985). In our case, we have no way of determining whether the factors checked have any support because there was no discussion of the crimes or the aggravating factors checked by the trial court. This deprived appellant of any opportunity to object to or refute the reasons given for departure. In these circumstances, the use of a check list of aggravating circumstances requires us to vacate appellant’s sentences and remand for a new sentencing hearing.
We further note that because sentencing was under the guidelines, the trial court erred in retaining jurisdiction over any part of appellant’s sentences. See Williams v. State, 470 So. 2d 864 (Fla. 2d DCA 1985).
Finally, the court imposed three-year minimum mandatory sentences for all crimes pursuant to section 775.087(2), Florida Statutes (1983). Our reading of the record causes us to question whether all crimes charged were eligible for such treatment. See Peck v. State, 425 So. 2d 664 (Fla. 2d DCA 1983). The trial court should revisit this matter on remand.
We find no merit to appellant’s contention that the colloquy between his counsel and the court did not effect an affirmative selection to be sentenced under the guidelines for the burglary for which probation was revoked. All other offenses occurred subsequent to October 1, 1983, and affirmative selection was not required. See § 921.001(4)(a), Fla.Stat. (1983).
Appellant’s sentences are VACATED, and this case is REMANDED for resentencing proceedings consistent with this opinion.
GRIMES, A.C.J., and OTT and FRANK, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Lambert v. State, 504 So. 2d 19 (Fla. 2d DCA 1987)…ut about what we fear we perceive is the beginning of a second generation of sentencing guidelines departure cases. At the very least, this is the second occasion we deal with the issue of departure in the same case. After our first reversal herein, 477 So. 2d 1065, the trial court resentenced Lambert and departed from the recommended sentence under the guidelines. This time, from the record before us, we must reverse as the trial judge erred in failing to provide written reasons for his departure. State v. Ja…
Authorities Cited
- Peck v. State, 425 So. 2d 664 (Fla. 2d DCA 1983)
- Brooks v. State, 466 So. 2d 1182 (Fla. 1st DCA 1985)
- Williams v. State, 470 So. 2d 864 (Fla. 2d DCA 1985)
- Williams v. State, 471 So. 2d 630 (Fla. 1st DCA 1985)