KENNETH E. BRUTON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Kenneth Bruton was sentenced to 6 years incarceration plus probation for four counts of obtaining property by worthless check, exceeding the recommended sentencing guideline range of 2⅛ to 3¾ years. The court reversed and remanded because the trial court failed to state written or oral reasons for departing from the guidelines, as required by Florida law.
The trial court erred by failing to state oral or written reasons for departing from the sentencing guidelines. The unauthorized departure from guidelines requires reversal and remand for resentencing, regardless of whether the defendant contemporaneously objected.
[1] A trial court must state written reasons for departing from sentencing guidelines when the imposed sentence exceeds the recommended guidelines sentence.
[2] Failure to contemporaneously object to a trial court's departure from sentencing guidelines does not preclude appellate review of the departure.
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Join FLexlaw to unlock all legal intelligence“the court erred in failing to state reasons for departing from the guidelines. The total sentence imposed for each of the four offenses clearly exceeded the total guidelines sentence, in violation of Fla.R. Crim.P. 3.701(d)(12)”
Establishes the core error: failure to provide reasons for departure from sentencing guidelines
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Join FLexlaw to unlock all legal intelligenceBruton was charged with four counts of obtaining property in return for a worthless check under Florida Statutes section 832.05(4). He pleaded guilty …
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SHIVERS, Judge.
Appellant in this case, Kenneth Bruton, was originally charged by four separate informations with four counts of obtaining property in return for a worthless check, in violation of section 832.05(4), Florida Stat utes. After pleading guilty to each count, he appeared for sentencing on April 5, 1985. One sentencing guidelines score-sheet was prepared for all four counts, totaling 61 points and recommending a sentence of 2⅛ to 3’/a years incarceration. Despite this recommendation, the trial court imposed a sentence of 3 years incarceration on the first case, 3 years incarceration on the second ease (to run consecutive to the first), 3 years incarceration on the third case (to run concurrent to the first), and 3 years probation on the fourth case (to commence after the expiration of the prison sentences). No oral or written reasons for departure from the guidelines were given.
Appellant now argues, and we agree, that the court erred in failing to state reasons for departing from the guidelines. The total sentence imposed for each of the four offenses clearly exceeded the total guidelines sentence, in violation of Fla.R. Crim.P. 3.701(d)(12). Since no written reasons were given for the departure, the matter must be reversed and remanded for resentencing. In Braddock v. State, 472 So. 2d 875 (Fla. 1st DCA 1985), the trial court improperly exceeded the sentencing guidelines without expressing clear and convincing reasons for departure. We reversed and held that failure to contemporaneously object to the trial court’s departure from the sentencing guidelines does not foreclose the issue on appeal. In State v. Whitfield, 487 So. 2d 1045 (Fla., 1986), the supreme court recently confirmed that an unauthorized departure from the guidelines does not require a contemporaneous objection.
Accordingly, we reverse the sentence and remand for resentencing.
ZEHMER and BARFIELD, JJ., concur.
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Cited By
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Bruton v. State, 510 So. 2d 1243 (Fla. 1st DCA 1987)…NIMMONS, Judge. This is another sentencing guidelines case. Appellant appeals from his sentences which upwardly depart from the sentence range called for by the guidelines scoresheet. Previously, this court in Bruton v. State, 489 So. 2d 1195 (Fla. 1st DCA 1986), reversed appellant’s sentences and remanded for resentencing because of the [*1244] trial court's failure to state written reasons for departure. Appellant pled guilty to four counts of obtaining property for a worthless check,…
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Finklea v. State, 514 So. 2d 1126 (Fla. 1st DCA 1987)…in imposing consecutive sentences when it re-sentenced appellant. See Stokes v. State, 512 So. 2d 290 (Fla. 1st DCA 1987); Sparkman v. State, 507 So. 2d 1188 (Fla. 1st DCA 1987); Foster v. State, 491 So. 2d 328 (Fla. 1st DCA 1986); Bruton v. State, 489 So. 2d 1195 (Fla. 1st DCA 1986), appeal after remand, 510 So. 2d 1243, (Fla. 1st DCA 1987); and Hagins v. State, 509 So. 2d 1244 (Fla. 2d DCA 1987). Once again, this court must reverse appellant’s sentence and remand with instructions to the trial court to sent…
Authorities Cited
- State v. Whitfield, 487 So. 2d 1045 (Fla. 1986)
- Braddock v. State, 472 So. 2d 875 (Fla. 1st DCA 1985)