STATE OF FLORIDA, APPELLANT,
v.
ANDREW JOSEPH, APPELLEE
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Florida appealed a trial court's order withholding adjudication of guilt and imposing probation after the defendant pleaded nolo contendere to drug possession and sale charges. The court reversed because the trial court failed to provide written reasons for departing downward from sentencing guidelines as required by law.
The court reversed because the trial court failed to state in a contemporaneous writing its reasons for departing from the guidelines sentence. While drug addiction may justify downward departure if supported by the record, and the court declined to rule on whether religious beliefs could justify departure, the lack of written reasons constitutes reversible error requiring remand.
[1] A downward departure from sentencing guidelines without valid written reasons constitutes reversible error.
[2] A trial court's order affirming a departure from sentencing guidelines must state written reasons for the departure.
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Join FLexlaw to unlock all legal intelligence“A downward departure from sentencing guidelines without valid written reasons constitutes reversible error.”
Establishes the fundamental requirement that courts must provide written reasons for any departure from guidelines
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Join FLexlaw to unlock all legal intelligenceAndrew Joseph was charged in four informations with possession and sale of controlled substances. He filed a motion to dismiss based on freedom of rel…
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PER CURIAM.
This is an appeal from an order withholding adjudication of guilt and placing appel-lee on probation, and an order on a motion to correct an illegal sentence. We reverse and remand.
The appellee, charged in four informa-tions with various charges involving the possession and sale of controlled substances, filed a motion to dismiss the charges based on a freedom of religion claim, which the trial court denied. Appel-lee entered a plea of nolo contendere. The trial court, over objection by the state, entered the order withholding adjudication of guilt, placed appellee on probation and sentenced appellee to time served. The state filed a motion to correct an illegal sentence claiming that the trial court’s order was illegal because: (1) the sentence departed from the guidelines, (2) the order did not provide written reasons for the departure, and (3) the appellee did not present any valid reasons for the departure. The trial court entered an order on the motion that affirmed the departure based on “the small amount of controlled substance involved.”
The state argues that the trial court erred in its downward departure from the sentencing guidelines based on the “small amount of controlled substance involved.” Appellee does not contest that argument but states that the trial court also considered two other reasons for the sentencing departure: (1) appellee’s drug addiction, and (2) appellee’s religious beliefs. There was unsworn discussion of the latter at the hearing on appellee’s motion to dismiss. The order on the motion to correct an illegal sentence did not cite the above two factors as reasons for the departure. A downward departure from sentencing guidelines without valid written reasons constitutes reversible error. § 921.001(6), Fla.Stat.; Fla.R.Crim.P. 3.701(b)(6); State v. Hernandez, 525 So. 2d 493 (Fla. 3d DCA 1988).
Appellee's drug addiction may justify a downward departure from sentencing guidelines. Barbera v. State, 505 So. 2d 413 (Fla.1987); State v. Mesa, 520 So. 2d 328 (Fla. 3d DCA 1988). However, the record must support the conclusion that the appellee has a drug addiction before that may be considered a valid reason for departure. State v. Francis, 524 So. 2d 1172 (Fla. 4th DCA 1988). In State v. Salony, 528 So. 2d 404 (Fla. 3d DCA 1988), the court found that the record supported the conclusion that the defendant had a drug addiction based on past crimes for which he was convicted and the crime for which he was being sentenced.
We are not prepared to say whether there are circumstances in which a downward departure may be based on the defendant’s religious beliefs.
Since the trial court did not state in a contemporaneous writing its reasons for departure from the guidelines sentence, the instant case must be reversed. If the trial court does not believe that a downward departure is justified, the appellee must be given the opportunity to withdraw his plea. See State v. McCluster, 525 So. 2d 434 (Fla. 3d DCA 1988).
GLICKSTEIN, POLEN, JJ., and ESQUIROZ, MARGARITA, Associate Judge, concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
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Herrin v. State, 568 So. 2d 920 (Fla. 1990)…ions of other district courts of appeal which have held, often without elaboration, that substance abuse is a valid reason for downward departures from the sentencing guidelines. State v. Winter, 549 So. 2d 1170 (Fla. 4th DCA 1989); State v. Joseph, 543 So. 2d 405 (Fla. 4th DCA 1989); State v. Bledsoe, 538 So. 2d 94 (Fla. 3d DCA 1989); State v. Salony, 528 So. 2d 404 (Fla. 3d DCA), review denied, 531 So. 2d 1355 (Fla.1988); State v. Whitten, 524 So. 2d 1114 (Fla. 4th DCA 1988); State v. Francis, 524 So. 2d 11…
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State v. Herrin, 555 So. 2d 1288 (Fla. 2d DCA 1990)…at a trial court may depart downward from the sentencing guidelines recommendation if intoxication or dependency on drugs or alcohol caused the defendant to commit the crime or was a factor in the commission of the crime. See, e.g., State v. Joseph, 543 So. 2d 405 (Fla. 4th DCA 1989); State v. Bledsoe, 538 So. 2d 94 (Fla. 3d DCA 1989); State v. Salony, 528 So. 2d 404 (Fla. 3d DCA), review denied, 531 So. 2d 1355 (Fla.1988); State v. Wilson, 523 So. 2d 178 (Fla. 3d DCA 1988); State v. Mesa, 520 So. 2d 328 (Fla…1 / 2
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Gartrell v. State, 609 So. 2d 112 (Fla. 4th DCA 1992)…imposed outside the range recommended by the guidelines be explained in writing by the trial court judge”, and is therefore illegal. This court has held that a downward departure sentence without written reasons is reversible error. State v. Joseph, 543 So. 2d 405 (Fla. 4th DCA 1989). It has also implicitly recognized that such sentences are illegal. See Edwards v. State, 576 So. 2d 441, 442 (Fla. 4th DCA 1991) (“[i]f the 50 year [sentence] is considered a departure sentence, it is also illegal because no cle…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Barbera v. State, 505 So. 2d 413 (Fla. 1987)
- State v. Mesa, 520 So. 2d 328 (Fla. 3d DCA 1988)
- State v. Salony, 528 So. 2d 404 (Fla. 3d DCA 1988)
- State v. McCLUSTER, 525 So. 2d 434 (Fla. 3d DCA 1988)
- White v. State, 524 So. 2d 1172 (Fla. 4th DCA 1988)
- Chisholm v. Chisholm, 525 So. 2d 493 (Fla. 3d DCA 1988)
- Complete Auto & Fleet Serv., Inc. v. Dresser Leasing Corp., 525 So. 2d 493 (Fla. 3d DCA 1988)