PEDRO SARRIA, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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The court reversed an upward departure sentence because the trial court reimposed the same sentence on the same unjustified ground (victim's emotional hardship) after being explicitly directed on remand to do otherwise.
A trial court must obey the appellate court's mandate and cannot reimpose an upward departure sentence on the same ground that was previously held to be insufficient.
[1] A trial court must comply with an appellate court's mandate and cannot reimpose a sentence on a ground that the appellate court has already held to be insufficient.
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The court emphasized that trial courts must comply with appellate mandates without exception.
Sarria was sentenced with an upward departure based on the victim's emotional hardship. On appeal, the court reversed, holding this ground was unjusti…
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SCHWARTZ, Chief Judge.
In Sarria v. State, 501 So. 2d 737 (Fla. 3d DCA 1987), this court reversed the appellant’s upward departure sentence upon the holding that the only ground assigned for the deviation, the victim’s emotional hardship, was unjustified. Notwithstanding this clear holding, the trial court, after our remand “for further proceedings consistent with this opinion,” Sarria, 501 So. 2d at 738, took further testimony and again imposed the same departure sentence on the same announced ground of emotional damage to the victim. In the strongest terms, we disapprove of this course of action. The reimposition of the sentence on the same basis both was entirely contrary to the clear terms of our opinion and mandate, which the trial court is bound without question to obey, Berger v. Leposky, 103 So. 2d 628 (Fla.1985); Beach Resort Hotel Corp. v. Wieder, 90 So. 2d 52 (Fla.1956), and represented an equally unjustified attempt to create a newly-corrected basis for deviation after the original assigned ground had been held to be insufficient on appeal. Shull v. Dugger, 515 So. 2d 748 (Fla.1987), precludes any such result.
For these reasons, the sentence under review is reversed and the trial court is directed forthwith to sentence the defendant within the applicable guidelines of three and one-half to four and one-half years. Rehearing is dispensed with.
Reversed and remanded with directions.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Patten v. State, 531 So. 2d 203 (Fla. 2d DCA 1988)…ly new reasons for departure at resentencing, but must sentence the defendant within the presumptive guidelines range. See Brumley v. State, 520 So. 2d 275 (Fla.1988); Velazguez-Velazguez v. State, 523 So. 2d 774 (Fla. 3d DCA 1988); Sarria v. State, 523 So. 2d 727 (Fla. 3d DCA 1988); Dean v. State, 523 So. 2d 165 (Fla. 1st DCA 1988); Harris v. State, 520 So. 2d 688 (Fla. 3d DCA 1988); King v. State, 520 So. 2d 310 (Fla. 2d DCA 1988); Matire v. State, 520 So. 2d 292 (Fla. 4th DCA 1988). The problem with that…
Authorities Cited
- Shull v. Dugger, 515 So. 2d 748 (Fla. 1987)
- Berger v. Leposky, 103 So. 2d 628 (Fla. 1958)
- Beach Resort Hotel Corp. v. Wieder, 90 So. 2d 52 (Fla. 1956)
- Sarria v. State, 501 So. 2d 737 (Fla. 3d DCA 1987)