STATE OF FLORIDA, APPELLANT,
v.
ROY DEAN GREEN, APPELLEE
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Clear and convincing reasons are not required for a downward departure in a youthful offender sentence when the sentence is below the recommended guideline sentence, even with the state's right to appeal.
[1] Written reasons are not required for a downward departure in a youthful offender sentence when the sentence is below the recommended guideline sentence.
[2] The 1987 amendment to section 958.04, Florida Statutes, permitting state appeals of youthful offender sentences, did not alter the requirement for written reasons for dow…
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Join FLexlaw to unlock all legal intelligenceThe defendant was sentenced as a youthful offender below the recommended sentencing guidelines. The state appealed, contending that additional clear a…
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STONE, Judge.
The defendant was sentenced as a youthful offender pursuant to section 958.04, Florida Statutes (1987), to a term below that recommended in the sentencing guidelines. The language on the scoresheet reflects the youthful offender sentence, but the state contends that additional clear and convincing reasons must be given for a downward departure.
In State v. Diers, 532 So. 2d 1271 (Fla.1988), the supreme court determined that, under the 1985 version of section 958.04(3), written reasons for a downward departure were not required in a youthful offender sentence. In 1987 the section was amended to permit appellate review by the state. Notwithstanding this modification, the legislature left intact the portion of the statute stating that:
The provisions of this section shall not be used to impose a greater sentence than the maximum recommended range as established by statewide sentencing guidelines pursuant to s. 921.001 unless reasons are explained in writing by the trial court judge which reasonably justify departure, [emphasis added].
In Diers, the court found that the “explicit” restriction imposed by the statute with respect to guideline increases, which, “read together with the just-as-pointed omission of a reverse prohibition of a downward departure,” was a basis for concluding that the legislature did not intend to require that written clear and convincing reasons be given for a downward departure in a youthful offender sentence. Id. at 1272 (emphasis in original).
We recognize that the reasoning in Diers was in part based on the language in the 1985 statute, omitted in the 1987 amendment, restricting the right of appeal under the Act to defendants. However, notwithstanding the modification permitting appeals by the state, we conclude that clear and convincing reasons for the downward departure are not required where a youthful offender sentence is below the recom mended guideline sentence. See State v. Diers; State v. Nealy, 532 So. 2d 1117 (Fla. 2d DCA 1988). The defendant’s sentence is therefore affirmed.
GLICKSTEIN and POLEN, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
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Cited By
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Kepner v. State, 577 So. 2d 576 (Fla. 1991)…PER CURIAM. We review State v. Kepner, 560 So. 2d 251 (Fla. 3d DCA 1990), because of certified conflict with State v. Green, 541 So. 2d 789 (Fla. 4th DCA 1989), and State v. Nealy, 532 So. 2d 1117 (Fla. 2d DCA 1988). We have jurisdiction. Art. V, § 3(b)(4), Fla. Const. This case involves whether a trial court must provide written reasons for imposing sentence under the youthful offender…
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State v. Kepner, 560 So. 2d 251 (Fla. 3d DCA 1990)…contends solely that written reasons are required by the applicable statute.2 In accordance with Wiedeman v. State, 506 So. 2d 1079 (Fla. 5th DCA 1987), but directly contrary to State v. Nealy, 532 So. 2d 1117 (Fla. 2d DCA 1988) and State v. Green, 541 So. 2d 789 (Fla. 4th DCA 1989), we conclude that the state’s position is correct. The result in this case turns on the latest, though probably not the last, chapter in the continuing legislative-judicial saga of the interplay between the guidelines and senten…
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State v. Hal Edward Cheesman, 541 So. 2d 181 (Fla. 4th DCA 1989)…PER CURIAM. Affirmed. See the discussion in State v. Green, 541 So. 2d 789 (Fla. 4th DCA 1989). See also State v. Diers, 532 So. 2d 1271 (Fla.1988); State v. Nealy, 532 So. 2d 1117 (Fla.2d DCA 1988). GLICKSTEIN, STONE and POLEN, JJ., concur.…
Authorities Cited
- State v. Diers, 532 So. 2d 1271 (Fla. 1988)
- State v. Nealy, 532 So. 2d 1117 (Fla. 2d DCA 1988)