DOYAL POWELL ROBERTS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Appellant Roberts challenged his sentence after his initial scoresheet was found erroneous on direct appeal. When remanded for resentencing under a corrected scoresheet with a lower guideline range, the trial court imposed the same 27-year sentence. The First District held that because the original sentence was within the original (albeit incorrect) guidelines range, the trial court could impose the same sentence on remand without violating the rule that resentencing must occur within the new guidelines range.
The trial court may impose the same sentence on remand because the original sentence was within the original scoresheet's range and no departure occurred at the time of original sentencing. The rule from Shull v. Dugger applies only when the trial court provided invalid reasons for departure; it does not restrict resentencing when no departure was originally made.
[1] A trial court may depart from sentencing guidelines on remand for resentencing if the original sentence was not considered a departure at the time of imposition, even if…
[2] A trial court is not precluded from imposing a departure sentence on remand if no departure occurred at the original sentencing.
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Join FLexlaw to unlock all legal intelligence“Shull held that when all reasons given by the trial court for departure are found invalid, the trial court, on resentencing, must impose sentence within the guidelines range. In other words, the trial court is precluded from imposing a departure sentence based upon new reasons.”
Explains the narrow holding of Shull v. Dugger and distinguishes it from the present case
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Join FLexlaw to unlock all legal intelligenceRoberts was convicted of sexual battery and burglary and initially sentenced to 27 years, which fell within the 22-27 year guidelines range. On direct…
The full statement of facts, procedural history, and disposition for this case are member content.
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NIMMONS, Judge.
Appellant was initially convicted of sexual battery and burglary and sentenced to concurrent terms of 27 years in prison, the guidelines range being 22 to 27 years.
After failing to challenge his sentence on direct appeal,1 appellant filed a motion to correct his sentences, alleging that his scoresheet was incorrect. Appellant prevailed on appeal, and this court ordered that the scoresheet be corrected and appellant resentenced. Roberts v. State, 507 So. 2d 761 (Fla. 1st DCA 1987).
A new guidelines scoresheet was prepared, which called for a 17 to 22 year range. Pursuant to the state’s request, the judge departed from the new guidelines range and imposed the same 27-year sentence imposed originally. This appeal followed.
Appellant asserts that when the case was remanded for resentencing under the corrected scoresheet, the trial court was not at liberty to impose a sentence in excess of the guidelines. Appellant relies upon Shull v. Dugger, 515 So. 2d 748 (Fla.1987). Such reliance is misplaced. Shull held that when all reasons given by the trial court for departure are found invalid, the trial court, on resentencing, must impose sentence within the guidelines range J In other words, the trial court is precluded from imposing a departure sentence based upon new reasons.
In the instant case, the original sentence was within the range of sentences reflected by the original scoresheet, albeit the score-sheet was later found to be in error. Since no departure took place, no reason was assigned, or needed to be assigned.
We realize that the Third District has construed Shull in a manner consistent with appellant’s position and therefore has reached a result opposite to ours. We therefore certify conflict with Harrison v. State, 523 So. 2d 726 (Fla. 3rd DCA 1988). We follow our earlier decision in Chaplin v. State, 473 So. 2d 842, 844 (Fla. 1st DCA 1985), as approved by the Supreme Court in State v. Chaplin, 490 So. 2d 52, 53 (fn. 1) (Fla.1986). The Second District has reached the same conclusion as we have in its en banc opinion in Waldron v. State, 529 So. 2d 772 (Fla. 2nd DCA 1988). The Waldron court stated:
Shull v. Dugger, 515 So. 2d 748 (Fla.1987) requires resentencing within the sentencing guidelines presumptive range only where the trial court provides invalid reasons for departure. Shull does not address the situation wherein a trial judge does not offer reasons for departure because at the time of sentencing, the sentence imposed by the court is not considered to be a departure from the sentencing guidelines. We hold that where a trial court does not provide reasons for departure and the sentence imposed is later determined to be a departure, the trial court must be given an opportunity to depart from the presumptive guidelines sentence after remand for resentencing. Daughtry [v. State, 521 So. 2d 208 (Fla. 2nd DCA 1988)]
Id. at 774. We fully agree with that analysis.
AFFIRMED.
JOANOS and WIGGINTON, JJ., concur. . Roberts v. State, 491 So. 2d 1147 (Fla. 1st DCA 1986).
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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State v. Betancourt, 552 So. 2d 1107 (Fla. 1989)…ce, finding that the trial judge had departed from the sentencing guidelines without written reasons, and directed that Betancourt be re-sentenced within the guidelines range on remand. We have jurisdiction because of conflict with Roberts v. State, 534 So. 2d 1225 (Fla. 1st DCA 1988), approved, 547 So. 2d 129 (Fla.1989), and Waldron v. State, 529 So. 2d 772 (Fla. 2d DCA 1988) (en banc). Art. V, § 3(b)(3), Fla. Const. For the reasons expressed, we quash that part of the district court decision which mandates t…
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Doyal Powell Roberts v. State, 547 So. 2d 129 (Fla. 1989)…OVERTON, Justice. We have for review Roberts v. State, 534 So. 2d 1225 (Fla. 1st DCA 1988). The district court affirmed a departure sentence, rejecting Roberts’ claim that no departure was allowed in a resentencing when the trial judge did not originally depart and the resentencing was due to an improper calculation of…
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Henderson v. State, 577 So. 2d 653 (Fla. 1st DCA 1991)…e constituted a departure, and cites State v. Betancourt, 552 So. 2d 1107 (Fla.1989), for the proposition that the court should have the option on remand of imposing a departure sentence, supported in writing by valid criteria. In Roberts v. State, 534 So. 2d 1225 (Fla. 1st DCA 1988), approved 547 So. 2d 129 (Fla.1989), the trial court was unaware that it had imposed a departure sentence, because it had been provided with an incorrect scoresheet. The court held that a judge who finds a higher guidelines range…
Previewing 3 of 8 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Shull v. Dugger, 515 So. 2d 748 (Fla. 1987)
- State v. Chaplin, 490 So. 2d 52 (Fla. 1986)
- Waldron v. State, 529 So. 2d 772 (Fla. 2d DCA 1988)
- Daughtry v. State, 521 So. 2d 208 (Fla. 2d DCA 1988)
- Harrison v. State, 523 So. 2d 726 (Fla. 3d DCA 1988)
- Chaplin v. State, 473 So. 2d 842 (Fla. 1st DCA 1985)
- Doyal Powell Roberts v. State, 507 So. 2d 761 (Fla. 1st DCA 1987)