DANIEL JOSEPH POPE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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A sentence imposed without written reasons for departure must be vacated and remanded for resentencing, allowing the trial court to provide written reasons for departure upon remand.
[1] A sentence must be vacated and remanded for resentencing when the trial judge fails to provide written reasons for a departure sentence.
[2] Upon remand for resentencing due to the failure to provide written reasons for a departure sentence, the trial court may provide written reasons for a departure.
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Join FLexlaw to unlock all legal intelligenceThe defendant was sentenced after the trial judge announced oral reasons for departure but failed to provide written reasons. The defendant appealed t…
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ORFINGER, Judge.
Defendant appeals from a sentence imposed after the trial judge announced oral reasons for departure, but failed to provide written reasons. We must vacate the sentence and remand for resentencing for failure to provide written reasons. See State v. Jackson, 478 So. 2d 1054 (Fla.1985), receded from on other grounds, Wilkerson v. State, 513 So. 2d 664 (Fla.1987).
A more troublesome issue raised in this appeal is the contention of appellant that in remanding the case for resentencing, we must advise the trial court that he is now precluded from entering a departure sentence because it was not done properly the first time.
We reject that contention, but not without observing that the various district courts are in disarray on the issue of the proper instruction to be given the trial court when a cause is remanded due to the trial court’s failure to initially provide written reasons for a departure sentence. Compare, e.g., Daughtry v. State, 521 So. 2d 208 (Fla. 2d DCA), review denied, 528 So. 2d 1181 (Fla.1988) (where trial court failed to provide written reasons for the departure sentence the cause is remanded for resentencing within the recommended range or for a statement of proper written reasons for a departure from that range) with Jenkins v. State, 528 So. 2d 527 (Fla. 2d DCA 1988) (where court failed to provide written reasons to support departure sentence the cause was remanded with directions to resentence defendant within the sentencing guidelines); compare Padgett v. State, 534 So. 2d 1246 (Fla. 3d DCA 1988) (where court failed to provide written reasons for the departure sentence the cause was remanded with directions to provide written reasons to support the departure)1 with Rangel v. State, 532 So. 2d 84 (Fla. 3d DCA 1988) (court remanded for resentencing within the guidelines following the trial court’s failure to provide written reasons for entering a departure sentence); compare Schmeisser v. State, 527 So. 2d 276 (Fla. 4th DCA 1988) (cause reversed and remanded for the trial court to satisfy the requirement of giving written reasons for departing from the sentencing guidelines) with Florence v. State, 532 So. 2d 1345 (Fla. 4th DCA 1988) (where the written order containing the reasons for departure was not completed contemporaneously with the pronouncement of sentence the appellate court reversed and remanded with instructions that appellant be resentenced within the guidelines).
See also State v. Lawler, 531 So. 2d 752 (Fla. 4th DCA 1988) (where no written reasons for downward departure, reversed for sentencing within guidelines range or “to provide written reasons for any departure therefrom.”).
We agree with those cases which permit the trial court, on remand, to supply written reasons for departure where only oral reasons were given at sentencing. We find nothing in Shull v. Dugger, 515 So. 2d 748 (Fla.1987) which prohibits this result.
In Oden v. State, 463 So. 2d 313 (Fla. 1st DCA 1984), approved, State v. Oden, 478 So. 2d 51 (Fla.1985) the appellate court vacated a departure sentence for failure of the trial court to provide written reasons, and remanded for resentencing. In so doing, the court observed that “[s]hould the trial court again decide to depart from the guidelines, it should follow the requirements of Jackson [v. State, 454 So. 2d 691 (Fla. 1st DCA 1984) (written reasons required for departure, approved as to the requirement of written reasons, State v. Jackson, 478 So. 2d 1054 (Fla.1985))].” In Barbera v. State, 505 So. 2d 413 (Fla.1987), in vacating a downward departure sentence, the supreme court remanded for re-sentencing “so that the trial judge can write out his specific reasons for departure.” Nothing in the opinion distinguishes the writing requirements in mitigated sentences from those in aggravated sentences. We therefore reject the defendant’s contention that the trial judge may not depart from the recommended guidelines sentence upon resentencing. See also Reed v. State, 539 So. 2d 580 (Fla. 5th DCA 1989).
Since this defendant must be resen-tenced, we call to the attention of the trial court the fact that the scoresheet used here included points for only one of the two cases before the court for sentencing. Although the presumptive guidelines sentence would appear not to be affected had points for the other case been included, nevertheless, on remand, a correct score-sheet should be used.
Sentence VACATED; REMANDED.
SHARP, C.J. and GOSHORN, J., concur. . The cases cited in Padgett supporting this result were those wherein the state took an appeal based on the court’s failure to provide written reasons for a downward departure. The Third District has consistently permitted a court to provide written reasons for a downward departure upon remand after failing to initially provide written reasons. See State v. Johnson, 533 So. 2d 939 (Fla. 3d DCA 1988); State v. McDavid, 532 So. 2d 1125 (Fla. 3d DCA 1988); State v. Adams, 528 So. 2d 548 (Fla. 3d DCA 1988).
We agree with the result in Padgett, which involved an upward departure, however, because we find nothing in the sentencing guideline rules which apply different procedural requirements depending on whether the departure is upward or downward.
Rule 3.701(d)ll requires written reasons when the departure either aggravates or mitigates the recommended guidelines sentence and does not distinguish between them. See also Viera v. State, 532 So. 2d 743 (Fla. 3d DCA 1988) where the court approved an upward departure sentence imposed after remand for failure to provide a written order when the departure sentence was originally imposed.
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Pope v. State, 561 So. 2d 554 (Fla. 1990)…BARKETT, Justice. We have for review Pope v. State, 542 So. 2d 423 (Fla. 5th DCA 1989), based upon express and direct conflict with Crigler v. State, 526 So. 2d 176 (Fla. 2d DCA 1988), and numerous other decisions of the district courts.1 We quash the district court’s decision in Pope and approve the decision in Cr…
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Reed v. State, 565 So. 2d 708 (Fla. 5th DCA 1990)…PER CURIAM. Affirmed on the authority of Pope v. State, 542 So. 2d 423 (Fla. 5th DCA 1989), rev. granted, 550 So. 2d 467 (Fla.1989). AFFIRMED. DAUKSCH, COBB and PETERSON, JJ., concur.…1 / 2
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Ellison v. State, 545 So. 2d 480 (Fla. 5th DCA 1989)…, we reverse the simple battery conviction, vacate the sentence im [*482] posed for the burglary offense, and remand for resentencing. The trial court may again impose a departure sentence, if it supplies adequate written reasons. See Pope v. State, 542 So. 2d 423 (Fla. 5th DCA 1989); cf. Dyer v. State, 534 So. 2d 843 (Fla. 5th DCA 1988). AFFIRM in part; REVERSE in part; REMAND for resentencing. GOSHORN, J., concurs. DAUKSCH, J., concurs in conclusion only without opinion. . § 810.02(2)(a), Fla.Stat. (198…
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 (21 total)
- State v. Jackson, 478 So. 2d 1054 (Fla. 1985)
- Shull v. Dugger, 515 So. 2d 748 (Fla. 1987)
- Barbera v. State, 505 So. 2d 413 (Fla. 1987)
- Jackson v. State, 454 So. 2d 691 (Fla. 1st DCA 1984)
- THE Florida BAR v. Winter, 478 So. 2d 51 (Fla. 1985)
- Wilkerson v. State, 513 So. 2d 664 (Fla. 1987)
- Oden v. State, 463 So. 2d 313 (Fla. 1st DCA 1984)
- State v. Johnson, 533 So. 2d 939 (Fla. 3d DCA 1988)
- State v. Wayda, 533 So. 2d 939 (Fla. 3d DCA 1988)
- State v. Adams, 528 So. 2d 548 (Fla. 3d DCA 1988)