JAMES E. JOHNSON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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James Johnson appeals his 30-year concurrent sentence for kidnapping and petit theft, challenging the trial court's departure from the presumptive sentencing range without providing written reasons for the departure as required by Florida law.
The sentence must be reversed and the case remanded for resentencing because the departure sentence was unsupported by the clear and convincing reasons in a separate written document required by Rule 3.701(d)(11), and the trial court must resentence Johnson in conformity with either the habitual offender statute or the sentencing rules.
[1] A sentence departing from the presumptive range requires clear and convincing reasons set forth in a separate written document.
[2] A trial court's oral pronouncements at sentencing must be supported by written predicate grounds justifying departure.
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Join FLexlaw to unlock all legal intelligence“The record, however, is barren of any predicate, orally pronounced or written, justifying departure.”
Establishes that the trial court failed to provide required written reasons for the sentencing departure.
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Join FLexlaw to unlock all legal intelligenceJohnson forced his victim at knifepoint to drive around Pinellas County seeking an automated teller machine and stole $15 that the victim withdrew. Th…
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FRANK, Judge.
James E. Johnson appeals from concurrent terms of imprisonment following conviction for the crimes of kidnapping and petit theft. The charges against him arose from events which followed a homosexual encounter; he forced his partner-victim under the threat of being cut with a pocket knife to drive around Pinellas County in search of an automatic teller machine from which money could be withdrawn. Ultimately, Johnson stole the $15.00 his victim was able to withdraw. At the time of sentencing, the scoresheet produced a recommended sentencing range of 17 to 22 years. Based upon Johnson’s record, however, the state sought the imposition of a habitual offender sentence pursuant to section 775.084, Florida Statutes (1985).
The trial court, however, was reluctant to treat Johnson as a habitual offender for to do so would have required a life sentence pre scribed in section 775.084(4)(a)l.
Thus, the trial court imprisoned Johnson for a total of 30 years and departed from the presumptive range. Recognizing that written reasons supporting enhancement could be provided at a later time, the trial court did not articulate departure grounds at sentencing.
The record, however, is barren of any predicate, orally pronounced or written, justifying departure. We must reverse the sentence and remand for resentencing.
The transcript of the sentencing hearing reveals that the trial court confronted a “dilemma” at sentencing. Johnson’s pre-sentence investigation report warranted the imposition of a habitual offender sentence — life; he had spent the bulk of his adult life either in jail or in the commission of crimes. It was that background which motivated the state to seek a habitual offender sentence.
The trial court, however, was unwilling to sentence Johnson to a life sentence because of the circumstances associated with the crimes for which he was convicted. During the discussion of the trial court’s dilemma with the prosecutor and Johnson’s attorney, the prosecutor suggested Johnson be given a 30 year sentence, the statutory maximum for a felony in the first degree. § 775.082(3)(b), Fla.Stat. (1985).
The trial court found that term acceptable and Johnson’s attorney stated, “We prefer that you sentence him to 30 years.” Contrary to the state’s contention, Johnson’s post-trial, post-conviction sentence was not the product of plea bargaining. See Brown v. State, 367 So. 2d 616 (Fla.1979); Fla.R.Crim.P. 3.171. The opportunity to bargain a plea had passed and the colloquy can not be taken to mean there was a negotiated agreement for a specific departure sentence. Cf. Bell v. State, 453 So. 2d 478 (Fla. 2d DCA 1984).
Thus, we are left with a departure sentence unsupported by the elements required by Rule 3.701(d)(ll) — clear and convincing reasons set forth in a separate written document.
Accordingly, we are compelled to vacate the sentence and remand with direction that Johnson be resentenced in conformity with either section 775.084, Florida Statutes (1985), or Rule 3.701 of the Florida Rules of Criminal Procedure.1
GRIMES, A.C.J., and HALL, J., concur. . If the trial court determines to resentence Johnson as a habitual offender, its attention is signalled to Eutsey v. State, 383 So. 2d 219 (Fla.1980), and to our opinions in White v. State, 481 So. 2d 1258 (Fla. 2d DCA 1986), Ferguson v. State, 481 So. 2d 924 (Fla. 2d DCA 1986) and Fleming v. State, 480 So. 2d 715 (Fla. 2d DCA 1986).
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Middleton v. State, 489 So. 2d 201 (Fla. 2d DCA 1986)…cterized as being at sentencing and if her criminal history record supports the invocation of section 775.084, Florida Statutes, reliance upon and obedience to that statute, as we perceive it, offer a valid basis for departure. See Johnson v. State, 486 So. 2d 53, 54, fn. 1 (Fla.2d DCA 1986) and Hale v. State, 490 So. 2d 122 (Fla.2d DCA 1986). Accordingly, we reverse and remand for resentencing. DANAHY, A.C.J., concurs. LEHAN, J., concurs specially with opinion.…
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Al Smith v. State, 488 So. 2d 593 (Fla. 2d DCA 1986)…). Accordingly, appellant’s convictions are affirmed, but appellant’s sentence for throwing a deadly missile into a occupied vehicle is reversed and the case remanded for resentencing. For guidance, the trial court is directed to Johnson v. State, 486 So. 2d 53, 54 n. 1 (Fla. 2d DCA 1986). RYDER, C.J., and FRANK, J., concur.…
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Johnson v. State, 510 So. 2d 658 (Fla. 2d DCA 1987)…ty years for kidnapping and one year for petit theft. On appeal, this court vacated the sentence and remanded the case for resentencing based on the trial court’s failure to articulate any grounds for departure from the guidelines. Johnson v. State, 486 So. 2d 53 (Fla. 2d DCA 1986). On remand, the trial court resentenced the defendant and again departed from the recommended guidelines sentence by sentencing him concurrently to thirty years for kidnapping and sixty days for petit theft. The court gave four w…
Authorities Cited
- Fredford James Eutsey v. State, 383 So. 2d 219 (Fla. 1980)
- Brown v. State, 367 So. 2d 616 (Fla. 1979)
- Bell v. State, 453 So. 2d 478 (Fla. 2d DCA 1984)
- Fleming v. State, 480 So. 2d 715 (Fla. 2d DCA 1986)
- DCA Homes, Inc. v. City OF Miramar, 481 So. 2d 1258 (Fla. 4th DCA 1986)
- Vera v. State, 481 So. 2d 924 (Fla. 4th DCA 1985)
- Ferguson v. State, 481 So. 2d 924 (Fla. 2d DCA 1985)