THE STATE OF FLORIDA, APPELLANT,
v.
GEORGE NATHAN LEMON, APPELLEE
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The State appealed a trial court's downward departure from sentencing guidelines in a case where the defendant was convicted of resisting an officer. The court sentenced the defendant to three months with credit for time served instead of the recommended 5½ years. The appellate court reversed, finding the trial court failed to provide clear and convincing reasons in writing for the departure.
The trial court erred in failing to enter a written statement with clear and convincing reasons for the downward departure from guidelines. The notation on the scoresheet was insufficient to constitute the required written statement, and it was unclear whether the officer's agreement to reduce the charge was the basis for the departure or merely explained the charge reduction.
[1] A trial court must enter a written statement with clear and convincing reasons to depart from sentencing guidelines.
[2] A reduction of a charged offense is not a valid reason for departing from sentencing guidelines.
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Join FLexlaw to unlock all legal intelligence“The trial court erred in failing to enter a written statement delineating clear and convincing reasons for sentencing defendant outside the guidelines.”
Establishes the core legal requirement violated by the trial court
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Join FLexlaw to unlock all legal intelligenceGeorge Nathan Lemon was charged with two counts: depriving an officer of means of protection or communication, and resisting an officer with violence.…
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BASKIN, Judge.
The state seeks review of the trial court’s downward departure from sentencing guidelines. Defendant Lemon was charged in a two-count information with depriving an officer of means of protection or communication and resisting an officer with violence to his person. Pursuant to an agreement with the state, the trial court reduced the second count to resisting an officer without violence,1 defendant pled nolo contendere, and the court adjudicated him guilty of both counts. Although the recommended guidelines sentence was to 5½ years incarceration, the court sentenced defendant to three months with credit for time served. The state objected to the sentence and filed this appeal. We reverse.
The trial court erred in failing to enter a written statement delineating clear and convincing reasons for sentencing defendant outside the guidelines. § 921.001(6), Fla.Stat. (Supp.1986); Fla.R.Crim.P. 3.701(b)(6); (<¾(11). See State v. Jackson, 478 So. 2d 1054 (Fla.1985). In the space on the guidelines scoresheet marked “Reasons for departure” the scoresheet preparer wrote “victim officer agrees to reducing Count 2 to resisting w/o violence.” It is unclear whether that agreement was the reason for the court’s departure from the guidelines 2 or merely signified the reason for the state’s reduction of the charge. Consequently, we find that the trial court's downward departure from the guidelines is not supported by clear and convincing reasons. Upon remand, unless defendant chooses to withdraw his plea,3 see State v. Thomas, 516 So. 2d 1058 (Fla. 3d DCA 1987); State v. Williams, 515 So. 2d 1051 (Fla. 3d DCA 1987); State v. Johnson, 512 So. 2d 1116 (Fla. 3d DCA 1987), resentencing must be within the recommended guidelines range.
We therefore vacate the sentence and remand for further proceedings in accordance with this opinion.
Reversed and remanded.
. On remand the court should correct the judgment to reflect the reduction.
. We note that the reduction of a charged offense is not a valid reason for departing from the guidelines. Furthermore, this court, as well as other courts, has stated that notations on a scoresheet do not constitute a sufficient writing as required by rule and statute. State v. Echemeque, 503 So. 2d 996 (Fla. 3d DCA 1987); Echevarria v. State, 492 So. 2d 1146 (Fla. 3d DCA 1986); Bauza v. State, 491 So. 2d 323 (Fla. 3d DCA 1986); Mortimer v. State, 490 So. 2d 93 (Fla. 3d DCA 1986); Watson v. State, 492 So. 2d 831 (Fla. 5th DCA 1986); Bouthner v. State, 489 So. 2d 784 (Fla. 5th DCA 1986); Corum v. State, 484 So. 2d 102 (Fla. 1st DCA 1986). See also Hipp v. State, 509 So. 2d 1208 (Fla. 4th DCA 1987). But see Vogtsberger v. State, 502 So. 2d 984 (Fla. 1st DCA), review denied, 511 So. 2d 299 (Fla.1987); Knight v. State, 501 So. 2d 150 (Fla. 1st DCA 1987); Colvin v. State, 501 So. 2d 118 (Fla. 2d DCA 1987); Thorne v. State, 496 So. 2d 891 (Fla. 2d DCA 1986); Speights v. State, 495 So. 2d 882 (Fla. 2d DCA), review denied, 501 So. 2d 1283 (Fla.1986).
. The record discloses that the sentence imposed was an important factor in the entry of defendant’s plea. At the sentencing hearing the judge asked defendant:
THE COURT: Are you aware of what’s going to happen to you today as a result of this plea? In other words, you are going to be given credit for time served, you will be able to go wherever you would like, do you understand that?
THE DEFENDANT: Yes.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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State v. Frederick, 525 So. 2d 491 (Fla. 3d DCA 1988)…(Supp.1986), Florida Rules of Criminal Procedure 3.701(b)(6) and 3.701(d)(ll), or the applicable case law. See State v. Jackson, 478 So. 2d 1054 (Fla.1985) (trial court must give written reasons for any guidelines departure); accord State v. Lemon, 517 So. 2d 117 (Fla. 3d DCA 1987). We, therefore, vacate and remand for the entry of an appropriate written order. In so doing, we direct the trial court’s attention to State v. Taylor, 482 So. 2d 578 (Fla. 5th DCA 1986) (defendant’s compliance with court order no…
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Johnson v. State, 524 So. 2d 1153 (Fla. 3d DCA 1988)…prior to briefing on this case, which held that writing reasons on guidelines scoresheets did not satisfy the guidelines’ "written statement delineating the reasons for departure” requirement, Fla.R. Crim.P. 3.701(d)(ll). See, e.g., State v. Lemon, 517 So. 2d 117, 117 n. 1 (Fla. 3d DCA 1987); State v. Echemeque, 503 So. 2d 996 (Fla. 3d DCA 1987); Echevarria v. State, 492 So. 2d 1146 (Fla. 3d DCA 1986); Bauza v. State, 491 So. 2d 323 (Fla. 3d DCA 1986); Mortimer v. State, 490 So. 2d 93 (Fla. 3d DCA 1986); Wat…
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State v. Orestes Hernandez, 525 So. 2d 493 (Fla. 3d DCA 1988)…PER CURIAM. The defendant confesses that the court’s downward departure from the sentencing guidelines without written reasons constitutes reversible error. State v. Lemon, 517 So. 2d 117 (Fla. 3d DCA 1987). [*494] Reversed and remanded for further proceedings accordingly.…
Authorities Cited (18 total)
- State v. Jackson, 478 So. 2d 1054 (Fla. 1985)
- State v. Johnson, 512 So. 2d 1116 (Fla. 3d DCA 1987)
- Hipp v. State, 509 So. 2d 1208 (Fla. 4th DCA 1987)
- Bauza v. State, 491 So. 2d 323 (Fla. 3d DCA 1986)
- Speights v. State, 495 So. 2d 882 (Fla. 2d DCA 1986)
- State v. Thomas, 516 So. 2d 1058 (Fla. 3d DCA 1987)
- Corum v. State, 484 So. 2d 102 (Fla. 1st DCA 1986)
- Nivaldo Echevarria v. State, 492 So. 2d 1146 (Fla. 3d DCA 1986)
- Bouthner v. State, 489 So. 2d 784 (Fla. 5th DCA 1986)
- State v. Mortimer, 490 So. 2d 93 (Fla. 3d DCA 1986)