WILLIAM JOHNSON, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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William Johnson appealed his grand theft conviction, challenging an upward departure from the sentencing guidelines. The court affirmed the conviction but reversed the sentence and remanded for resentencing within the guidelines, finding the trial court's reasons for departure—based on a crime for which Johnson was acquitted—were invalid.
The trial court erred in departing upward from the sentencing guidelines because the reasons given related to a crime for which the defendant was acquitted and therefore could not justify the departure. The conviction is affirmed, but the sentence is reversed and the case is remanded for resentencing within the guidelines.
[1] A trial court may not depart upward from sentencing guidelines based on a crime for which the defendant was acquitted.
[2] Reasons for departing from sentencing guidelines must be stated in a separate written order, not merely as notations on a sentencing scoresheet.
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Join FLexlaw to unlock all legal intelligence“The reasons given by the trial court for departing from the sentencing guidelines do not constitute valid reasons for such a departure. They relate entirely to a crime for which the defendant was acquitted by the jury, and plainly, cannot be used as reasons for departing from the sentencing guidelines on the crime for which the defendant was convicted.”
Establishes the core holding that sentencing departure reasons must relate to the crime of conviction, not acquitted charges
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Join FLexlaw to unlock all legal intelligenceJohnson was convicted by jury of grand theft. The trial court imposed a sentence departing upward from the sentencing guidelines, citing reasons that …
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PER CURIAM.
The defendant William Johnson appeals from a judgment of conviction and sentence for grand theft entered below upon an adverse jury verdict. His sole contention on appeal is that the trial court erred in imposing a sentence upon him which departs upward from the sentencing guidelines. The state has filed a brief in which it confesses error in this respect on the ground that the trial court’s written reasons for departing from the sentencing guidelines, which were noted on the sentencing scoresheet,1 do not constitute a sufficient basis upon which to justify the subject departure. We agree and reverse.
The reasons given by the trial court for departing from the sentencing guidelines do not constitute valid reasons for such a departure. They relate entirely to a crime for which the defendant was acquitted by the jury, and plainly, cannot be used as reasons for departing from the sentencing guidelines on the crime for which the defendant was convicted. See, e.g., McMillan v. State, 478 So. 2d 1195 (Fla. 4th DCA 1985).
The final judgment of conviction is, accordingly, affirmed, but the sentence under review is reversed, and the cause is remanded to the trial court with directions to resentence the defendant within the sentencing guidelines. Affirmed in part; reversed in part and remanded.
. The state also confessed "error” on the separate ground that the lower court entered no separate written order, apart from rather cryptic notations at the bottom of the guidelines scoresheet, delineating its reasons for departure. This confession was based on a line of cases from this and other districts, decided 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); 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); however, since the time of briefing herein, the Florida Supreme Court, in Torres-Arboledo v. State, 524 So. 2d 403 (Fla.1988), held that where, unlike here, the reasons given by the trial court constitute a valid basis for departure, notation of such reasons at the bottom of guidelines scoresheets does not require reversal due to the lack of a separate written order indicating reasons for departure. Id. at 414.
Accord Velazguez-Velazguez v. State, 523 So. 2d 774 (Fla. 3d DCA 1988).
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Ferguson v. State, 537 So. 2d 144 (Fla. 3d DCA 1989)…ng scoresheet as stated above]. Although it is permissible for a trial court to set out on the sentencing scoresheet its reasons for departing from the sentencing guidelines, see Torres-Arboledo v. State, 524 So. 2d 403 (Fla.1988); Johnson v. State, 524 So. 2d 1153 (Fla. 3d DCA 1988); Velazquez-Velazquez v. State, 523 So. 2d 774 (Fla. 3d DCA 1988), we believe it is elementary that the reasons so stated must be articulated in a coherent fashion and cannot, as here, consist of cryptic notes with vague and ambigu…
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Aleman v. State, 536 So. 2d 384 (Fla. 3d DCA 1989)…obtained.” Thus, the first reason does not support departure. See State v. Tyner, 506 So. 2d 405, 406 (Fla.1987) (where murder charges dismissed, deaths which occurred as a direct result of burglary improper reason for departure); Johnson v. State, 524 So. 2d 1153 (Fla. 3d DCA 1988) (where departure reasons “relate entirely to a crime for which the defendant was acquitted by the jury,” reasons cannot be used as basis for departing from the guidelines on convicted offense); Johnson v. State, 517 So. 2d 792 (Fl…
Authorities Cited (13 total)
- Torres-Arboledo v. State, 524 So. 2d 403 (Fla. 1988)
- Hipp v. State, 509 So. 2d 1208 (Fla. 4th DCA 1987)
- Bauza v. State, 491 So. 2d 323 (Fla. 3d DCA 1986)
- 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)
- Watson v. State, 492 So. 2d 831 (Fla. 5th DCA 1986)
- McMILLAN v. State, 478 So. 2d 1195 (Fla. 4th DCA 1985)
- Velazguez-Velazguez v. State, 523 So. 2d 774 (Fla. 3d DCA 1988)