RONALD CALVIN COLEMAN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE

Fla. 2d DCA | 1986-04-02
No. 84-2697
SCHEB, A.C.J., and SANDERLIN, J., concur.
486 So. 2d 43 Florida District Court of Appeal, Second District (1986) Positive Treatment
Cited by 6 cases

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Holding

The court held that a discussion of sentencing guidelines by counsel does not constitute an affirmative election to be sentenced under the guidelines, and departure from guidelines without a scoresheet is error.

Headnotes

[1] A discussion of the recommended guidelines sentence by counsel does not constitute a clear and unequivocal election to be sentenced under the guidelines where the record…

[2] Sentencing a defendant under the guidelines without the benefit of a properly prepared guidelines scoresheet constitutes error.

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Facts & Procedural History

Appellant was convicted of delivery and possession of cocaine. He argued that his sentences were improperly imposed without affirmative selection of s…

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Topics
Guidelines Scoresheet Sentencing Guidelines

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Opinion of the Court
HALL, Judge.

HALL, Judge.

Ronald Coleman seeks this court’s review of his judgment and sentences for a 1983 charge of delivery of cocaine and a 1984 charge of possession of cocaine.

Appellant alleges that the trial court erred in that he did not affirmatively select sentencing under the guidelines on the 1983 delivery of cocaine conviction. As to the 1984 conviction of possession of cocaine, appellant alleges that the trial court erred in departing from the recommended guidelines sentence without benefit of a guidelines scoresheet and in failing to contemporaneously set forth in writing its reasons for departure. He further alleges that the reasons for departure were invalid.

Appellant was charged with possession and delivery of cocaine on September 6, 1983. Appellant failed to appear for his court dates and a capias was issued. He was arrested on April 4, 1984, on the capias, and incident to the arrest and search of appellant, cocaine was found in his possession. On October 14, 1984, appellant pled guilty to the 1983 charge of delivery of cocaine and to the 1984 charge of possession of cocaine. The court adjudicated appellant guilty of these charges and stated that it was “going outside the guidelines unless the police officers tell me that I should not.” Appellant was then sentenced to the maximum period of fifteen years’ imprisonment for possession of cocaine and a consecutive term of five years’ imprisonment for possession of cocaine.

The record does not reflect that appellant ever elected to be sentenced under the guidelines, and it fails to reflect that the trial judge had available or utilized a guidelines scoresheet at the time he sentenced appellant. The only discussion of the recommended guidelines sentence came in the form of statements by the assistant state attorney who contended that the recommended guidelines sentence was twelve to thirty months’ or community control, while the attorney for appellant contended that “the guidelines end up being nonstate prison sanctions rather than controls.” The record on appeal is completely devoid of a scoresheet. Appellee contends that discussion of the guidelines by appellant’s counsel evidenced his selection to be sentenced under the guidelines for the 1983 charge of delivery of cocaine. We disagree.

Where the record contains no affirmative selection of the guidelines by appellant, this court has held that a discussion of the recommended guidelines sentence by counsel does not constitute a clear and unequivocal election. Blackwelder v. State, 476 So. 2d 280 (Fla. 2d DCA 1985); Jordan v. State, 460 So. 2d 477 (Fla. 2d DCA 1984). The record fails to disclose that appellant elected to be sentenced under the guidelines for the 1983 crime of delivery of cocaine, and therefore, we must reverse the sentence and remand for resentencing on this charge.

As to appellant’s contention that it was error to sentence appellant under the guidelines for the 1984 crime of possession of cocaine without benefit of a guidelines scoresheet, we agree.

Other than conflicting statements by counsel for the state and counsel for the defendant as to the recommended guidelines sentence, there is nothing in the record to show that the trial judge had the benefit of a properly prepared guidelines scoresheet. The record on appeal fails to include a guidelines scoresheet. As we have held in the past, it is error for the trial judge to depart from a guidelines sentence without the benefit of a properly prepared guidelines scoresheet. Therefore, we reverse the conviction for the 1984 crime of possession of cocaine and remand for resentencing. Myrick v. State, 461 So. 2d 1359 (Fla. 2d DCA 1984); Doby v. State, 461 So. 2d 1360 (Fla. 2d DCA 1984); Adams v. State, 483 So. 2d 121 (Fla. 2d DCA 1986).

Because of our disposition of appellant’s first two points on appeal, we do not find it necessary to address appellant’s other points on appeal; but if departure from the guidelines is again considered, the court should demonstrably refer to a guidelines scoresheet, Lawrence v. State, 470 So. 2d 102 (Fla. 2d DCA 1985), and also be guided by the following cases: Hendrix v. State, 475 So. 2d 1218 (Fla.1985); Agatone v. State, 474 So. 2d 846 (Fla. 2d DCA 1985); Cannada v. State, 472 So. 2d 1296 (Fla. 2d DCA 1985); Lindsey v. State, 453 So. 2d 485 (Fla. 2d DCA 1984).

Reversed and remanded for resentencing consistent with this opinion.

SCHEB, A.C.J., and SANDERLIN, J., concur.

Cases With Similar Vibessemantic neighbors from the corpus

Citator

Cited By

  • Coleman v. State, 521 So. 2d 265 (Fla. 2d DCA 1988)
    …s, “the defendant’s insistence to the court at sentencing that the officers were lying ...” and the lack of a “reasonable belief that the defendant can be rehabilitated.” Coleman filed timely notice of appeal. On the prior appeal, Coleman v. State, 486 So. 2d 43 (Fla. 2d DCA 1986), this court reversed and remanded for resentencing because there was no indication in the record that Coleman ever affirmatively elected to be sentenced under the guide [*267] lines for the 1983 charge, and because there was no sc…
  • Mixon v. State, 497 So. 2d 720 (Fla. 2d DCA 1986)
    …mative selection. The state concedes that appellant did not select to be sentenced under the guidelines; therefore, we must reverse the sentence imposed for the dealing in stolen property conviction and remand for resentencing. See Coleman v. State, 486 So. 2d 43 (Fla. 2d DCA 1986); Adams v. State, 483 So. 2d 121 (Fla. 2d DCA 1986); Ryan v. State, 482 So. 2d 558 (Fla. 2d DCA 1986). Should appellant select to be sentenced under the guidelines on remand, a scoresheet must be prepared. Fla.R.Crim.P. 3.701(d)(1)…
  • Carter v. State, 496 So. 2d 889 (Fla. 2d DCA 1986)
    …sentenced under the guidelines without the benefit of an affirmative selection. The state concedes that appellant did not select to be sentenced under the guidelines and, therefore, we must reverse and remand for resentenc-ing. See Coleman v. State, 486 So. 2d 43 (Fla. 2d DCA 1986); Adams v. State, 483 So. 2d 121 (Fla. 2d DCA 1986); Ryan v. State, 482 So. 2d 558 (Fla. 2d DCA 1986). Should appellant select to be sentenced under the guidelines on remand, a scoresheet must be prepared. Fla.R.Crim.P. 3.701(d)(1)…

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