MICHAEL BEAL, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Michael Beal appealed his aggravated child abuse conviction and fifteen-year sentence, challenging the trial court's failure to provide a separate written document stating reasons for departing from sentencing guidelines, inconsistency between the oral and written judgments, and improper retention of jurisdiction. The appellate court found multiple errors and remanded for resentencing.
The court held that: (1) the trial court must prepare a separate, self-contained written document stating reasons for departing from guidelines, as required by Rule 3.701(d)(11), and incorporation in the transcript is insufficient; (2) a written judgment and sentence must conform to the oral pronouncement at sentencing, and any variance constitutes reversible error; and (3) retention of jurisdiction over a guidelines sentence has no purpose and is reversible error because parole is no longer available under the guidelines.
[1] Reasons for departure from sentencing guidelines must be set forth in a self-contained written document, not merely in the sentencing transcript.
[2] A written order of judgment and sentence must conform to the oral pronouncement made at the sentencing hearing.
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Join FLexlaw to unlock all legal intelligence“the mere incorporation of the trial court's grounds for departure in the sentencing transcript will not fulfill the rule's objective”
Establishes that Rule 3.701(d)(11) requires a separate, self-contained written document stating reasons for departure from guidelines, not just transcript inclusion.
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Join FLexlaw to unlock all legal intelligenceBeal pleaded nolo contendere to aggravated child abuse and was sentenced to fifteen years imprisonment outside the sentencing guidelines. The trial co…
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FRANK, Judge.
The appellant, Michael Beal, after pleading nolo contendere to the charge of aggravated child abuse, was adjudicated guilty and sentenced outside the sentencing guidelines to fifteen years of imprisonment. A separate document setting forth the written reasons for departure was not prepared by the trial court. Rather, the trial court’s reasons for departure were stated at the sentencing hearing and embodied in the transcript. In Smith v. State, 454 So. 2d 90 (Fla. 2d DCA 1984), and in subsequent decisions, we condoned that practice deeming it to be sufficient compliance with Rule 3.701(d)(ll) of the Florida Rules of Criminal Procedure. In the face of the supreme court’s decision in State v. Jackson, 478 So. 2d 1054 (Fla.1985), construing Rule 3.701(d)(ll) to require a self-contained document setting forth the reasons for departure, the mere incorporation of the trial court’s grounds for departure in the sentencing transcript will not fulfill the rule’s objective.
We also find error in the trial court’s failure to conform its written order of judgment and sentence to that which was expressed at the sentencing hearing. The state requested at the hearing that the appellant be sentenced as a habitual offender. The trial court denied the request for the reason the appellant did not fall within the purview of the habitual offender statute. § 775.084, Fla.Stat. (1984). Moreover, the trial court said nothing at the sentencing hearing relative to the retention of jurisdiction. In spite of the foregoing, the written order of judgment and sentence entered by the trial court adjudged the appellant an habitual offender and retained jurisdiction over one-third of his sentence. A written judgment and sentence must not vary from the oral pronouncement of judgment and sentence. Bogan v. State, 462 So. 2d 115 (Fla. 2d DCA 1985); Alphonse v. State, 430 So. 2d 538 (Fla. 2d DCA 1983). Thus, the trial court erred by entering a written order inconsistent with its utterances at the sentencing hearing.
The trial court further erred by attempting to retain jurisdiction over the appellant. The appellant was sentenced pursuant to the guidelines notwithstanding the trial court chose to depart from the recommended range. Prior to enactment of the sentencing guidelines, the purpose of retaining jurisdiction was to prohibit parole of a criminal defendant without the approval of the trial judge until after the defendant had served a specified portion of his sentence. Senczyszyn v. State, 467 So. 2d 1044 (Fla. 2d DCA 1985). Under the sentencing guidelines, however, parole is no longer available. § 921.001(8), Fla.Stat. (1983). Thus, the retention of jurisdiction over a guidelines sentence has no purpose and constitutes reversible error. Kennedy v. State, 475 So. 2d 247 (Fla. 2d DCA 1985); see also Barr v. State, 473 So. 2d 25 (Fla. 2d DCA 1985); Carter v. State, 464 So. 2d 172 (Fla. 2d DCA 1985).
Accordingly, on remand, the trial court is directed to resentence the appellant consistent with this opinion.
GRIMES, A.C.J., and OTT, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Rowe v. State, 496 So. 2d 857 (Fla. 2d DCA 1986)…ble in post-conviction proceedings. Ardley v. State, 491 So. 2d 1259 (Fla. 1st DCA 1986). At the time Rowe was sentenced, the failure to provide written reasons for departure did not necessarily constitute reversible error. See, e.g., Beal v. State, 478 So. 2d 401 (Fla. 2d DCA 1985). [*859] The two remaining guideline issues deal with alleged scoresheet miscalculations leading to an excessive sentence. Rule 3.800(a) of the Florida Rules of Criminal Procedure, as amended by the Supreme Court in State v. Whitfi…
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Gilmore v. State, 523 So. 2d 1244 (Fla. 2d DCA 1988)…e of the battery plea. We affirm the trial court’s oral pronouncement of the order of revocation. Appellant correctly points out that the written order does not conform with the trial [*1245] court’s oral pronouncements. See generally Beal v. State, 478 So. 2d 401 (Fla. 2d DCA 1985). Accordingly, we remand the cause with instructions that the trial court conform the written order to its oral pronouncements. Appellant next argues that once the trial court pronounced sentence, it could not modify the sentence…
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Dawkins v. State, 479 So. 2d 818 (Fla. 2d DCA 1985)…ument setting forth the reasons for departure. State v. Jackson, 478 So. 2d 1054 (Fla.1985). Thus, the trial court’s mere incorporation of departure grounds in the sentencing transcript fails to satisfy the rule and constitutes error. Beal v. State, 478 So. 2d 401 (Fla. 2d DCA 1985). Error also occurred in the trial court’s failure to justify its departure with clear and convincing reasons. The first reason for departure relied upon by the trial court was the severity of the crime. Severity of the crime has…
Previewing 3 of 9 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. Jackson, 478 So. 2d 1054 (Fla. 1985)
- Smith v. State, 454 So. 2d 90 (Fla. 2d DCA 1984)
- Carter v. State, 464 So. 2d 172 (Fla. 2d DCA 1985)
- Arba Earl Barr v. State, 473 So. 2d 25 (Fla. 2d DCA 1985)
- Bogan v. State, 462 So. 2d 115 (Fla. 2d DCA 1985)
- O'Byrne v. State, 462 So. 2d 115 (Fla. 2d DCA 1985)
- Senczyszyn v. State, 467 So. 2d 1044 (Fla. 2d DCA 1985)
- Alphonse v. State, 430 So. 2d 538 (Fla. 2d DCA 1983)
- Kennedy v. State, 475 So. 2d 247 (Fla. 2d DCA 1985)