HUBERT F. HUTCHINSON, SR., APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Hubert Hutchinson appeals his convictions for vehicle identification number offenses and a probation revocation sentence. The court vacates both sentences and remands for resentencing because the trial court failed to provide required written statements explaining departures from sentencing guidelines.
The court held that in Case BA-16, a written statement is essential when departing from guidelines recommendations, and in Case BA-17, although limited departures to the next higher cell are permitted without written explanation, sentences exceeding that cell require a written statement identifying specific factors justifying the departure.
[1] A court must provide a written statement of reasons when departing from recommended sentencing guidelines, even when classifying a defendant as an habitual offender.
[2] A written statement is required for a departure from recommended sentencing guidelines when the court does not resort to an extended term under the habitual offender law.
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“An accompanying written statement delineating the reasons for the departure, as required by Fla.R.Crim.P. 3.701(d)(11), is essential in these circumstances.”
Establishes that written statements explaining sentencing departures are mandatory, not discretionary.
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Join FLexlaw to unlock all legal intelligenceHutchinson was convicted of offenses involving vehicle identification numbers under Florida Statute § 319.33. In Case BA-16, the court adjudged him an…
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WENTWORTH, Judge.
In Case No. BA-16 appellant seeks review of judgments of conviction and sentences for offenses involving vehicle identification numbers, applications, and certificates as proscribed by § 319.33, Florida Statutes. In Case No. BA-17, appellant seeks review of a sentence imposed upon a revocation of probation. We find that sentencing errors exist in both cases; we therefore vacate the sentences imposed and remand for resentencing.
In Case No. BA-16 the court adjudged appellant to be an habitual offender pursuant to § 775.084, Florida Statutes. Appellant’s counsel argued that the protection of the public did not require appellant’s imprisonment for an extended term. The court made no specific finding in this regard, and utilized the sentencing guidelines to impose a sentence within the permissible statutory range without resort to an extended term under the habitual offender law.
However, the state suggested to the court that an habitual offender classification would allow the recommended guidelines sentence to be doubled, and the court did so exceed the guidelines recommendation without providing a separate written statement expressing the court’s reason for this departure. An accompanying written statement delineating the reasons for the departure, as required by Fla.R.Crim.P. 3.701(d)(11), is essential in these circumstances. See Holt v. State, 472 So. 2d 551 (Fla. 1st DCA 1985); Cuthbert v. State, 459 So. 2d 1098 (Fla. 1st DCA 1984).
It is therefore necessary that appellant’s sentences in Case No. BA-16 be vacated, and on remand if the guidelines are utilized the court must provide an accompanying written statement should it again depart from the recommended sentence.
In Case No. BA-17 appellant’s probation was revoked and he elected application of the sentencing guidelines. The court then imposed a term of imprisonment which exceeded the recommended guidelines sentence. Florida Rule of Criminal Procedure 3.701(d)(14) provides that:
The sentence imposed after revocation of probation ... may be increased to the next higher cell (guidelines range) without requiring a reason for departure.
The rule expressly permits a limited departure from the recommended sentence without the requirement of a written statement after revocation of probation.
However, the term of imprisonment imposed in the present case exceeds both the recommended guidelines sentence and the next higher cell, and is thus beyond the limited departure which the rule authorizes. Although the court did expressly state that such departure was predicated upon appellant’s violation of probation, this bare circumstance does not permit a term of imprisonment beyond the next higher cell above the recommended guidelines sentence. See Ehrenshaft v. State, 478 So. 2d 842 (Fla. 1st DCA 1985); Boldes v. State, 475 So. 2d 1356 (Fla. 5th DCA 1985); compare Pentaude v. State, 478 So. 2d 1147 (Fla. 1st DCA 1985).
It is therefore neces sary that appellant’s sentence in Case No. BA-17 be vacated, and upon remand the court must provide an accompanying written statement identifying the specific factors about appellant’s violation of probation, or any other circumstances, which warrant such departure should the court again impose a term of imprisonment beyond the next higher cell above the recommended guidelines sentence.
Accordingly, appellant’s sentences in both cases are vacated and the causes remanded for resentencing.
SHIVERS and WIGGINTON, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Watkins v. State, 498 So. 2d 576 (Fla. 3d DCA 1986)…offense into the guidelines scoresheet but also used the same legal status as a basis for departure from the guidelines. Brown v. State, 488 So. 2d 641 (Fla. 2d DCA 1986); see Riddle v. State, 488 So. 2d 903 (Fla. 5th DCA 1986); Hutchinson v. State, 479 So. 2d 267 (Fla. 1st DCA 1985). For these reasons, we hold that resentencing is required. Watkins also asserts that his attorney failed to provide effective assistance of counsel. We find this contention to be without merit. We therefore vacate the sentences…
Authorities Cited
- Boldes v. State, 475 So. 2d 1356 (Fla. 5th DCA 1985)
- Cuthbert v. State, 459 So. 2d 1098 (Fla. 1st DCA 1984)
- Miranda v. Hance Constr. Co., 478 So. 2d 1147 (Fla. 1st DCA 1985)
- Enrico Ehrenshaft v. State, 478 So. 2d 842 (Fla. 1st DCA 1985)
- Holt v. State, 472 So. 2d 551 (Fla. 1st DCA 1985)