CAMILO DORADO, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Dorado appeals his conviction for trafficking in cocaine and related firearms offenses, challenging the trial court's departure from sentencing guidelines. The appellate court agrees that the trial court failed to provide written reasons for departure as required by law and improperly relied on prior convictions, reversing and remanding for resentencing.
The trial court erred both in failing to provide written reasons for departure from the guidelines and in relying on prior convictions as a basis for departure. Written reasons are required, and oral statements dictated into the record are insufficient. The court reverses and remands for resentencing with a requirement that if departure is considered, a separate written order delineating the reasons must be entered.
[1] A trial court must provide written reasons for departing from recommended sentencing guidelines.
[2] Oral statements made by a trial judge during sentencing are insufficient to justify a departure from sentencing guidelines.
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Join FLexlaw to unlock all legal intelligence“Written reasons aré required when a trial court departs from the guidelines.”
Establishes the fundamental requirement at issue in the appeal
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Join FLexlaw to unlock all legal intelligenceAppellant was convicted of trafficking in cocaine and possession of a firearm during the commission of a felony, and pled nolo contendere to felon in …
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CAMPBELL, Acting Chief Judge.
Appellant was convicted of trafficking in cocaine and possession of a firearm during the commission of a felony. Appellant pled nolo contendere to an additional charge of felon in possession of a firearm. He was sentenced to thirty years and fined $50,000 on the trafficking charge and was sentenced fifteen years each on the other two charges.
On appeal, appellant argues that the trial court erred in not submitting written reasons for its departure from the recommended guideline sentence. We agree.
Written reasons aré required 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 upon the holding in Hendrix v. State, 475 So. 2d 1218 (Fla. 1985), we find that the trial court erred in relying on appellant’s prior convictions as a clear and convincing reason for departure. After reviewing the record, however, we feel that the trial court did espouse valid reasons for departure, including: (1) appellant’s background of extensive criminal activity, to wit: delivery of marijuana, possession of marijuana, uttering a forged instrument, aggravated battery, several violations of probation — indicating an escalating pattern of more serious crimes, see Smith v. State, 480 So. 2d 663 (Fla. 5th DCA 1985); and (2) the failure of previous attempts to rehabilitate appellant. Booker v. State, 482 So. 2d 414 (Fla. 2d DCA 1985).
Recognizing the supreme court’s holding in Albritton v. State, 476 So. 2d 158 (Fla. 1985), we cannot determine that the departure sentence would have been the same had the trial court disregarded appellant’s past convictions. Accordingly, based upon the trial court’s failure to give written reasons for its departure from the guidelines and its reliance on appellant’s prior convictions in departing, we reverse and remand for resentencing and, if departure is again considered, a separate written order delineating the reasons must be entered.
SCHOONOVER and LEHAN, JJ„ concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Bass v. State, 496 So. 2d 880 (Fla. 2d DCA 1986)…to appellant’s prior record is not a valid reason for departure. See Hendrix v. State, 475 So. 2d 1218 (Fla.1985); Baker v. State, (Fla. 1st DCA 493 So. 2d 515, 1986); see also, Riggins v. State, 489 So. 2d 180 (Fla. 1st DCA 1986); Dorado v. State, 482 So. 2d 561 (Fla. 2d DCA 1986); Parsons v. State, 491 So. 2d 1247 (Fla. 2d DCA 1986). Second, the court found significant the number of crimes appellant had been arrested for since May, 1983. Prior arrests may not be used to depart from the guidelines when the…
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Ballard v. State, 501 So. 2d 1285 (Fla. 4th DCA 1986)…it is not the prior offenses themselves that are considered but rather the pattern of escalating criminality discernible from them and the evidence that appellant is unam-endable to rehabilitation through the probation process. See Dorado v. State, 482 So. 2d 561 (Fla. 2d DCA 1986); Booker v. State, 482 So. 2d 414 (Fla. 2d DCA 1985); Smith v. State, 480 So. 2d 663 (Fla. 5th DCA 1985); Kiser v. State, 455 So. 2d 1071 (Fla. 1st DCA 1984); Higgs v. State, 455 So. 2d 451 (Fla. 5th DCA 1984). But see Battles v. S…
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Leath v. State, 487 So. 2d 384 (Fla. 4th DCA 1986)…judge referred to the grounds set forth in said motion as the reasons for his departure from the guidelines. Some of those grounds constitute valid reasons for departure, such as the appellant’s lack of capacity for rehabilitation, Dorado v. State, 482 So. 2d 561 (Fla. 2d DCA Feb. 5, 1986), and others do not, such as lack of remorse (which the state concedes is an invalid reason here), State v. Mischler, 488 So. 2d 523 (Fla.1986), thus requiring a new sentencing hearing under Albritton v. State, 476 So. 2d 1…
Previewing 3 of 7 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)
- Hendrix v. State, 475 So. 2d 1218 (Fla. 1985)
- City OF Atl. Beach v. Bull, 476 So. 2d 158 (Fla. 1985)
- Albritton v. State, 476 So. 2d 158 (Fla. 1985)
- Dilar S. Booker v. State, 482 So. 2d 414 (Fla. 2d DCA 1985)
- Smith v. State, 480 So. 2d 663 (Fla. 5th DCA 1985)
- Fernquist v. State, 480 So. 2d 123 (Fla. 2d DCA 1985)