ISAAC HARRIS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE

Fla. 2d DCA | 1988-09-30
No. 87-11
RYDER and PARKER, JJ., concur.
531 So. 2d 1018 Florida District Court of Appeal, Second District (1988) Negative Treatment
Cited by 12 cases

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Holding

The court held that a trial judge's oral pronouncements of reasons for departing from sentencing guidelines, even if transcribed, are insufficient; written reasons are mandatory.


Headnotes

[1] Reasons for departing from recommended sentencing guidelines must be in writing and cannot be satisfied by oral statements, even if transcribed.

[2] Oral pronouncements of a trial judge, even when transcribed and made part of the record, do not suffice as written reasons for departure from sentencing guidelines.

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Facts & Procedural History

The appellant was convicted of multiple offenses and sentenced to consecutive terms exceeding the recommended guidelines. The trial judge announced or…

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Opinion of the Court
SCHEB, Acting Chief Judge.

SCHEB, Acting Chief Judge.

Appellant, Isaac Harris, was convicted of multiple offenses, including sexual assault, armed robbery, and kidnapping. On appeal, he raises only one point. He argues that the court erred in sentencing him to five consecutive ninety-nine year prison terms.

During the sentencing hearing, the trial judge announced his intent to depart from the recommended guidelines sentence of life and gave oral reasons for sentencing Harris to five consecutive ninety-nine year terms. The state questions whether the sentence imposed represents a departure, but we agree with the trial judge that it was indeed a departure. Cf. Daughtry v. State, 521 So. 2d 208 (Fla. 2d DCA 1988) (two consecutive life sentences constitute a departure where guidelines recommend life). The trial judge erred, however, when he failed to provide written reasons for departing.

Since the Florida Supreme Court’s pronouncement in State v. Jackson, 478 So. 2d 1054 (Fla.1985), it has been clear that reasons for departure from recommended guidelines sentences must be in writing, and oral statements of a trial judge, even when transcribed and made a part of the record, do not suffice. Nevertheless, we continue to experience difficulty in reviewing departures because trial judges sometimes fail to comply with this requirement. Noncompliance is costly in judicial resources and unnecessarily encumbers the criminal justice system. Once again, we direct trial courts and counsel to assure adherence to this basic requirement. Only recently we observed that it is not the function of the appellate court to divine the reasoning process of the trial judge. See, e.g., Keeton v. State, 525 So. 2d 912 (Fla. 2d DCA 1988).

In the instant case, the following dialogue ensued between the trial judge and prosecutor:

THE COURT: I am exceeding the guidelines because while on probation for an armed burglary, he committed the offenses that he has pled to and have been outlined here today, plus his prior record. I want Joe [apparently the court reporter] to type up this transcript of these two witnesses and attach it to that order. If the District Court can tell me that this is not grounds for exceeding the guidelines, the legislature better look at it. PROSECUTOR: I was going to add I had prepared a sentencing memorandum that is in one of the court files indicating reasons, of course, on probation; also, psychological or emotional trauma is a reason.

THE COURT: Plus these convictions. Do you have his convictions, prior convictions?

PROSECUTOR: Yes, Your Honor. I have the copies of the prior convictions. THE COURT: Put that in the order, that he is on probation and while on probation does what he has done, copies of the testimony here today attached, his prior record as justification.

He is a threat to society if I have ever seen a threat to society.

Appellant recognizes that the trial judge departed for the reasons he stated orally as well as those listed in a sentencing memorandum furnished by the prosecutor to the judge at the sentencing. In addition to noting the concerns the trial judge expressed orally, the memorandum listed the protection of the public, participation in a crime wave or binge, the timing of a series of crimes, and escalation of violent criminal activity. These reasons are valid if established beyond a reasonable doubt. See State v. Mischler, 488 So. 2d 523 (Fla.1986); Fla.R.Crim.P. 3.701(d)(11). See also State v. Pentaude, 500 So. 2d 526 (Fla.1987) (egregious violation of probation); Mitchell v. State, 521 So. 2d 341 (Fla. 2d DCA 1988) (escalating criminal activity); Paschall v. State, 501 So. 2d 1370 (Fla. 2d DCA 1987) (crime binge). Although, standing alone, danger to society is an invalid reason for departure, Cotton v. State, 516 So. 2d 1077 (Fla. 2d DCA 1987), it may be a valid reason under the circumstances in this case since it is coupled with other facially valid reasons for departure. See Washington v. State, 501 So. 2d 133 (Fla. 2d DCA 1987); Fuller v. State, 488 So. 2d 594 (Fla. 2d DCA 1986).

Because it is essential that the trial judge explicate his reasons for departure so they can be properly reviewed, we find the trial judge in this case erred when he orally accepted the reasons proposed by counsel in his memorandum and directed that a transcript of the witnesses’ testimony accompany the order to support his departure. Thus, the trial judge failed to sufficiently articulate the basis for the reasons he departed and, as noted, failed to comply with the requirement to place these reasons in written form.

Accordingly, we affirm defendant’s convictions and remand with directions that the trial judge either resentence the defendant within the range of the recommended sentencing guidelines or set forth in writing clear and convincing reasons for departure. If the trial judge again departs, the court may not enunciate any new reasons for departure. Shull v. Dugger, 515 So. 2d 748 (Fla.1987).

RYDER and PARKER, JJ., concur.


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Citator

Cited By

  • Genaro Muniz Vara v. State, 546 So. 2d 1071 (Fla. 2d DCA 1989)
    …o a prison term in excess of the recommended guidelines range without providing written reasons. He is correct. Sentencing guidelines case law makes clear that this was reversible error. State v. Jackson, 478 So. 2d 1054 (Fla.1985); Harris v. State, 531 So. 2d 1018 (Fla. 2d DCA 1988). The appellant also contends that, in any event, the departure reasons, which the court pronounced orally at the sentencing hearing, are invalid. Because we must reverse and remand for the entry of written reasons for departure, i…
  • Eulyn R. Wiggins v. State, 632 So. 2d 666 (Fla. 2d DCA 1994)
    …n from these offenses. Unsuccessful rehabilitation is also not a valid reason for departure. Ellis v. State, 559 So. 2d 292 (Fla. 5th DCA 1990). Protection of the public is a valid reason only if it is coupled with another reason. Harris v. State, 531 So. 2d 1018 (Fla. 2d DCA 1988). However, as we have shown, the other two reasons given for departure in this case are not valid. Accordingly, we affirm Wiggins’ convictions but remand for resentencing within the guidelines. RYDER, A.C.J., and PARKER and LAZZA…
  • Ready v. State, 657 So. 2d 53 (Fla. 2d DCA 1995)
    …So. 2d 278 (Fla. 2d DCA 1988). In the instant case, since there were no other facially valid reasons for departure, the second reason for departure, protection of the public, is invalid. Garcia v. State, 521 So. 2d at 279. See also Harris v. State, 531 So. 2d 1018 (Fla. 2d DCA 1988). [*54] Accordingly, since the trial court’s reasons were invalid, they cannot justify the upward departure and the sentence must be reversed. Upon remand, the appellant must be resentenced within the guidelines. Ber-gling v. State…

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