STATE OF FLORIDA, APPELLANT,
v.
DENNIS EUGENE MARTIN, APPELLEE
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The court held that a downward departure from the recommended sentencing guidelines sentence requires written, clear, and convincing reasons, even when the recommended sentence exceeds the statutory maximum.
Appellee was adjudicated guilty of a lewd and lascivious act. The sentencing guidelines recommended life imprisonment, but the statutory maximum was f…
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BOARDMAN, EDWARD F., (Ret.) Judge.
Appellant (state) appeals from the sentence imposed upon appellee.
Following revocation of probation, appel-lee pled nolo contendere and was adjudicated guilty of committing a lewd and lascivious act, a second degree felony, in violation of section 800.04, Florida Statutes (1985). Under the guidelines scoresheet, appellee had 590 points. The sentencing guidelines recommended sentence was life imprisonment. The statutory maximum for that offense is fifteen years imprisonment. §§ 800.04 and 775.082(3)(c), Fla. Stat. (1985). Over the state’s objection, the court sentenced appellee to eight years incarceration, to be followed by two years community control and five years probation.
The state argues that the trial court departed downward from the' recommended guidelines sentence and therefore erred in failing to provide written, clear and convincing reasons for the departure.
The state correctly points out that since the guidelines recommended sentence exceeded the statutory maximum of fifteen years incarceration, the fifteen years statutory maximum should be imposed. Fla.R. Crim.P. 3.701(d)(10). Committee Note (d)(12) provides that the court may impose a split sentence; however, the incarcerative portion shall not be less than the minimum guidelines range. We agree with the state’s contention that any incarcerative period under fifteen years is a downward departure. State v. DeMarco, 495 So. 2d 242 (Fla. 2d DCA 1986); State v. Rice, 464 So. 2d 684 (Fla. 5th DCA 1985); State v. Twelves, 463 So. 2d 493 (Fla. 2d DCA 1985). Suspension does not change this result. DeMarco, Twelves.
Accordingly, the trial court’s failure to submit written, clear and convincing reasons for departure was error. State v. Jackson, 478 So. 2d 1054 (Fla.1985).
We reverse and remand for further proceedings consistent with this opinion.
DANAHY, C.J., and SANDERLIN, J., concur.
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Cited By
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State v. Bryant, 546 So. 2d 1112 (Fla. 2d DCA 1989)…inmate. Thus, even if “parity” were otherwise a valid consideration, it is immaterial in the present case. The departure sentence is reversed and this case is remanded with directions to resentence Bryant to the statutory maximum. State v. Martin, 502 So. 2d 1371 (Fla. 2d DCA 1987). CAMPBELL, C.J., and SCHEB and THREADGILL, JJ., concur.…
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ASH v. State, 554 So. 2d 553 (Fla. 5th DCA 1989)…Florida Rule of Criminal Procedure 3.701 d.10. provides that' if the recommended guidelines sentence exceeds the statutory maximum “the statutory maximum should be imposed.” See State v. Thomas, 528 So. 2d 1274 (Fla. 3d DCA 1988); State v. Martin, 502 So. 2d 1371 (Fla. 2d DCA 1987). Thus, the court must impose 5 year sentences for the two crimes for which Ash was convicted. But, in its discretion, it may choose to have them run consecutively.5 We reject Ash’s additional argument that he should have been sen…
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Roberts v. State, 677 So. 2d 309 (Fla. 1st DCA 1996)…sentence "which included an incarceration period of less than the recommended minimum for the crimes” and remanding for resentencing with directions that "upon remand the trial court must give a written reason for such departure”); State v. Martin, 502 So. 2d 1371, 1372 (Fla. 2d DCA 1987) (holding that "the trial court’s failure to submit written, clear and convincing reasons for departure was error” because the incarcerative portion of the split sentence was less than the statutory maximum (fifteen years) wh…
Authorities Cited
- State v. Jackson, 478 So. 2d 1054 (Fla. 1985)
- State v. Twelves, 463 So. 2d 493 (Fla. 2d DCA 1985)
- State v. Rice, 464 So. 2d 684 (Fla. 5th DCA 1985)
- State v. DeMARCO, 495 So. 2d 242 (Fla. 2d DCA 1986)