DAVID FERNQUIST, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The Florida Second District Court of Appeal reversed a defendant's sentence for violating probation and trafficking in cocaine because the trial court failed to provide a written statement of reasons for departing from the sentencing guidelines, as required by State v. Jackson. The case was remanded for resentencing with proper compliance with the guidelines requirement.
A trial court must provide a written statement of reasons for any departure from the sentencing guidelines. Oral statements or a transcript thereof cannot satisfy this requirement. The trial court's failure to enter a proper written order requires reversal and remand for resentencing.
[1] A trial judge must state in writing the reasons for any departure from sentencing guidelines.
[2] Oral statements made by a judge during sentencing cannot justify a departure from sentencing guidelines.
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Join FLexlaw to unlock all legal intelligence“a trial judge must state in writing reasons for any departure from the guidelines”
Establishes the core requirement from State v. Jackson that governs this case
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Join FLexlaw to unlock all legal intelligenceAppellant Fernquist pleaded guilty to violating his probation and trafficking in cocaine and elected sentencing under the guidelines. The recommended …
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PER CURIAM.
Pursuant to State v. Jackson, 478 So. 2d 1054 (Fla.1985), which held that a trial judge must state in writing reasons for any departure from the guidelines, we grant appellant’s motion for rehearing, withdraw our decision filed September 20, 1985, and substitute the following:
Appellant pled guilty to charges of violating his probation and trafficking in cocaine and elected to be sentenced under the guidelines. § 921.001, Fla.Stat. (1983); Fla.R.Crim.P. 3.701. Appellant’s recommended guidelines sentence was a five and one-half to seven year state prison term. The trial court accepted the pleas and sentenced appellant to the maximum statutory penalty, consecutive sentences of fifteen and thirty years, respectively. The trial court also requested the state to “prepare a written order citing the reasons for my departure from the guidelines.” The state prepared a written order as requested but the trial court held that the order was unsatisfactory and ordered another. No written order was thereafter entered by the trial court.
In State v. Jackson our supreme court recently held that a transcript of the oral statements made by the judge during sentencing cannot justify departure because it cannot satisfy the statutes and rules which “clearly mandate that a trial judge state in writing reasons for any departure from the guidelines.” Accordingly, because there is no appropriate written order delineating the court’s reasons for departure, the trial court failed to comply with Florida Rule of Criminal Procedure 3.701(d)(ll). Therefore we reverse appellant’s sentences and re mand this cause for resentencing under the current guidelines. Should the trial court again decide to depart, it must promptly reduce to writing in a separate document its reasons justifying departure so as not to prejudice in any way appellant’s right of review. See Boynton v. State, 473 So. 2d 703 (Fla. 4th DCA 1985), approved, 478 So. 2d 351 (Fla.1985). To obtain further review, any aggrieved party must appeal the new ruling of the trial court.
In light of our disposition, we do not reach the other issues raised by appellant. Nevertheless, we deem it appropriate to observe that his challenge to the facial constitutionality of the sentencing guidelines statute, section 921.001(4)(a), Florida Statutes (1983), must fail. Hayward v. State, 467 So. 2d 462 (Fla. 2d DCA 1985).
SCHEB, A.C.J., and DANAHY and CAMPBELL, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Camilo Dorado v. State, 482 So. 2d 561 (Fla. 2d DCA 1986)…d when a trial court departs from the guidelines. State v. Jackson, 478 So. 2d 1054 (Fla.1985). A transcript of oral statements made by the trial judge during sentencing is not sufficient to justify departure from the guidelines. Fernquist v. State, 480 So. 2d 123 (Fla. 2d DCA 1985). A review of the record in the instant case reveals that no written reasons for departure were prepared. The judge dictated his reasons into the record, however, this is not sufficient to justify departure. Additionally, based u…
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Martire v. State, 486 So. 2d 681 (Fla. 2d DCA 1986)…, the trial court erred in applying Florida Rule of Criminal Procedure 3.701(d)(14) to increase appellant’s recommended sentence one cell without setting forth, in a separate document, written reasons for such departure. Jackson; Fernquist v. State, 480 So. 2d 123 (Fla. 2d DCA 1985). Third, the trial court’s sanction (incarceration in one case combined with probation in the other cases) is, absent valid written reasons therefor, an illegal split sentence under the guidelines. Although the total time of appell…
Authorities Cited
- State v. Jackson, 478 So. 2d 1054 (Fla. 1985)
- Boynton v. State, 473 So. 2d 703 (Fla. 4th DCA 1985)
- State v. Boynton, 478 So. 2d 351 (Fla. 1985)
- Armand Loden and Julie Loden v. Cester, 467 So. 2d 462 (Fla. 4th DCA 1985)
- Hayward v. State, 467 So. 2d 462 (Fla. 2d DCA 1985)