ALLAN MCCLATCHIE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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A defendant appealed his sentence, claiming the trial court failed to establish affirmative selection to sentence him under Florida's sentencing guidelines and failed to provide written reasons for departing from those guidelines. The court reversed and remanded for resentencing, finding the defendant had not made a clear and unequivocal choice to be sentenced under the guidelines.
The court held that the facts did not clearly establish affirmative selection to be sentenced under the guidelines because neither the defendant's attorney's signature on the scoresheet nor the defendant's silence at sentencing constituted a clear and unequivocal choice by the defendant to be sentenced under the guidelines. The court held that the trial court failed to provide written reasons required for its departure from the guidelines.
[1] A defendant's affirmative selection to be sentenced under the guidelines must be clear and unequivocal on the record.
[2] Defense counsel's signature on a scoresheet does not, by itself, establish a defendant's affirmative selection to be sentenced under the guidelines.
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Join FLexlaw to unlock all legal intelligence“the facts of this case do not clearly establish affirmative selection to be sentenced under the guidelines”
Establishes the court's central holding that the defendant did not make a clear election to be sentenced under guidelines
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Join FLexlaw to unlock all legal intelligenceThe defendant's attorney signed a sentencing guidelines scoresheet at some point, but the defendant himself did not sign the scoresheet. At sentencing…
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GLICKSTEIN, Judge.
There are two issues in this appeal, both compelling reversal of the sentence and remand, which we do.
First, in our collective judgment the facts of this case do not clearly establish affirmative selection to be sentenced under the guidelines. See Green v. State, 474 So. 2d 17 (Fla. 4th DCA 1085). Those facts are that (1) appellant’s attorney, at some time, signed the scoresheet; and (2) appellant did not indicate at sentencing that he did not wish to be sentenced pursuant to the guidelines, although he discussed other matters. He never said that he did wish to be so sentenced; and he did not sign the scoresheet.
This exact situation does not appear to have previously arisen; however there are some cases that are of assistance. In Blackwelder v. State, 476 So. 2d 280 (Fla.2d DCA 1985), defense counsel apprised the court of the recommended guidelines range and objected to its severity as applied to appellant. The court held that defense counsel’s discussion did not constitute a clear and unequivocal choice made by the appellant on the record, citing Jordan v. State, 460 So. 2d 477 (Fla.2d DCA 1984). In Kimsey v. State, 467 So. 2d 333 (Fla.2d DCA 1985), the court held that the silence of the appellant and discussion of the guidelines by defense counsel did not constitute a clear and unequivocal choice. In Favors v. State, 473 So. 2d 815 (Fla.2d DCA 1985), the court stated there must be a clear choice made on the record.
Second, the trial court failed to provide written reasons for its departure from the guidelines. Boynton v. State, 473 So. 2d 703 (Fla. 4th DCA 1985), affirmed, 478 So. 2d 351 (Fla.1985).
Should appellant elect to be sentenced under the guidelines, the trial court may increase appellant’s recommended sentence one cell for violation of probation, without providing written reasons. Fla.R. Crim.P. 3.701(d)(14). We would respectfully remind the trial judge that should he choose to depart from the guidelines by more than one cell, he may not consider factors relating to an offense for which a conviction has not been obtained. Fletcher v. State, 457 So. 2d 570 (Fla. 5th DCA 1984).
HURLEY, J., and BOARDMAN, EDWARD F., Associate Judge (Retired), concur.
Cases With Similar Vibessemantic neighbors from the corpus
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Lynch v. State, 491 So. 2d 1169 (Fla. 4th DCA 1986)…ears that I already just did? [PUBLIC DEFENDER]: Yes, has to be. In other words, he spent four years in jail, Judge— [*1170] We have held that a clear choice to be sentenced under the guidelines must be reflected by the record. McClatchie v. State, 482 So. 2d 550 (Pla. 4th DCA 1986). While it is not clear what appellant’s attorney meant by saying “[t]he sentencing guidelines apply,” we agree with appellant that this was a mistaken idea by the apparently newly appointed public defender that the guidelines aut…
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Johnson v. State, 516 So. 2d 1100 (Fla. 1st DCA 1987)…the record sub judice indicates clearly that appellant elected to be sentenced under the guidelines. Where the record is unclear, the cause must be remanded for resentenc-ing. Favors v. State, 473 So. 2d 815 (Fla. 2d DCA 1985); McClatchie v. State, 482 So. 2d 550 (Fla. 4th DCA 1986). Accordingly, we vacate and remand for resentencing. BOOTH, THOMPSON and WIGGINTON, JJ., concur.…
Authorities Cited
- Boynton v. State, 473 So. 2d 703 (Fla. 4th DCA 1985)
- State v. Boynton, 478 So. 2d 351 (Fla. 1985)
- Jordan v. State, 460 So. 2d 477 (Fla. 2d DCA 1984)
- Blackwelder v. State, 476 So. 2d 280 (Fla. 2d DCA 1985)
- Dorion Fletcher v. State, 457 So. 2d 570 (Fla. 5th DCA 1984)
- Kimsey v. State, 467 So. 2d 333 (Fla. 2d DCA 1985)
- Lowery v. State, 473 So. 2d 815 (Fla. 2d DCA 1985)
- Pelicie v. State, 474 So. 2d 17 (Fla. 3d DCA 1985)
- Cluster v. Scott, 474 So. 2d 17 (Fla. 4th DCA 1985)