ROBERT BO DEAN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that a trial court's oral pronouncement of reasons for departing from sentencing guidelines is insufficient; written reasons are required.
[1] A trial court's oral pronouncement of reasons for departing from sentencing guidelines is insufficient; written reasons are required.
[2] Failure to provide written reasons for a departure from sentencing guidelines constitutes reversible error.
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Join FLexlaw to unlock all legal intelligenceThe defendant was sentenced as a habitual offender, with the trial court orally stating its reasons for departing from the sentencing guidelines. The …
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SHIVERS, Judge.
Appellant appeals his sentence contending it improperly exceeds the sentencing guidelines range. Because the trial court failed to set forth in writing its reasons for departing from the guidelines range, we must reverse and remand for resentencing.
At the sentencing hearing, the trial court orally stated that it was departing from the guidelines range “because the Defendant is adjudged a habitual offender....” 1 This excerpt from the sentencing hearing was transcribed by the court reporter and placed in the record. However, a transcript of oral statements made by the judge during sentencing will not satisfy the sentencing guidelines requirement of written reasons. State v. Jackson, 478 So. 2d 1054, 1055 (Fla.1985). The trial court’s failure to put in writing its reasons for departing from the guidelines constitutes reversible error. Hall v. State, 492 So. 2d 692 (Fla. 1st DCA 1986); and Holt v. State, 472 So. 2d 551 (Fla. 1st DCA 1985).
Since the cause must be remanded for resentencing, we caution the trial court, as we did in Holt, 472 So. 2d at 552, that should it again sentence appellant as a habitual offender, that it should make specific findings of fact as to why it is necessary for the protection of the public to sentence appellant to an extended term. The trial court’s statement “[t]hat imposition of sentence under the enhanced penalty provisions of Section 775.084, Florida Statutes, for Habitual Felony Offenders is necessary in this instance for the protection of the public from further criminal activity by the Defendant” does not satisfy the specificity requirements of the habitual offender statute. Bogan v. State, 489 So. 2d 157, 158 (Fla. 2d DCA 1986).
REVERSED and REMANDED for proceedings consistent with this opinion.
WENTWORTH and BARFIELD, JJ„ concur. . We note that the court’s finding, supported by the record, that a defendant is a habitual offender constitutes a clear and convincing reason for departure. Hall v. State, 492 So. 2d 692 (Fla. 1st DCA 1986) (and cases cited therein).
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Cited By
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Burge v. State, 496 So. 2d 928 (Fla. 1st DCA 1986)…s should not be read into/the trial judge’s decision, but should be left to the trial judge for an affirmative finding if that was his intention. Such a departure reason would have to meet with the precise requirements of the statute. Dean v. State, 493 So. 2d 1114 (Fla. 1st DCA 1986); Holt v. State, 472 So. 2d 551 (Fla. 1st DCA 1985).…
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Dean v. State, 523 So. 2d 165 (Fla. 1st DCA 1988)…4-1226C on March 1, 1985. The trial court declared appellant to be a [*166] habitual offender and sentenced him to extended concurrent terms of seven years in the state prison in each case. This court reversed appellant’s sentences in Dean v. State, 493 So. 2d 1114 (Fla. 1st DCA 1986), because the trial court failed to give written reasons for departure. At the resentencing hearing on March 3, 1987, the trial court again determined appellant to be a habitual offender and departed from the recommended guidelin…
Authorities Cited
- State v. Jackson, 478 So. 2d 1054 (Fla. 1985)
- Holt v. State, 472 So. 2d 551 (Fla. 1st DCA 1985)
- Bogan v. State, 489 So. 2d 157 (Fla. 2d DCA 1986)
- Hall v. State, 492 So. 2d 692 (Fla. 1st DCA 1986)