STATE OF FLORIDA, APPELLANT,
v.
EDWARD DWAYNE USSERY, APPELLEE
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
The court held that a downward departure sentence based on victim request was invalid because the sentencing statutes in effect on the date of the crime control the legality of the sentence.
The appellee pleaded guilty to DUI manslaughter and other charges stemming from an accident where he was intoxicated, causing death and injuries. The …
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Downward Departure cases and more on FLexlaw
COBB, Judge.
The issue on this appeal concerns the trial court's downward departure from the recommended sentencing guidelines.
The appellee entered a plea of guilty to one count of DUI manslaughter, two counts of DUI with bodily injury, and reckless driving. §§ 316.193; 316.192, Fla.Stat. (1987). The charges resulted from an automobile accident on April 19, 1987, when the defendant was legally intoxicated and caused the death of William Irizarry and injured three of Irizarry’s family members. The amended scoresheet called for a sentencing range of three to seven years incarceration, but based mainly upon the request of the widow of the deceased, the trial court imposed a one cell downward departure sentence of two years community control followed by probation. The written reason for departure was given as “victims request departure.”
Pursuant to Article X, section 9 of the Florida Constitution, where a provision of a newly enacted criminal statute would ameliorate or mitigate a punishment or penalty, the statutory provisions may not apply retroactively to effect a judgment or sentence. As a result, sentencing statutes in effect on the date of a crime control the legality of a sentence. Castle v. State, 330 So. 2d 10, 11 (Fla.1976); Gourley v. State, 432 So. 2d 755 (Fla. 5th DCA 1983), dismissed, 458 So. 2d 272 (Fla.1984); Strachen v. State, 380 So. 2d 487, 488 (Fla. 3d DCA 1980); State v. Jefferson, 340 So. 2d 1189, 1190 (Fla. 4th DCA 1976).
In the instant case, it is clear that the crime occurred prior to the effective date of Florida Rule of Criminal Procedure 3.988(a) as amended, and the written reason for departure was invalid as a matter of law. State v. White, 532 So. 2d 1083, 1084 (Fla. 5th DCA 1988). Accordingly, the sentence as set forth by the trial court is reversed and remanded for the entry of a proper sentence.
REVERSED AND REMANDED.
DAUKSCH and ORFINGER, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
State v. Johns, 576 So. 2d 1332 (Fla. 5th DCA 1991)…d after the amendment, the sentence here would be valid because it falls within the "permitted range”. Unfortunately for the defendant, the sentencing laws in effect on the date of the crime control the legality of the sentence. See State v. Ussery, 543 So. 2d 457 (Fla. 5th DCA), rev. denied, 551 So. 2d 464 (Fla.1989).…
-
State v. McLAREN, 763 So. 2d 1171 (Fla. 4th DCA 2000)…o. 2d 789, 791 (Fla. 2d DCA 1997)(finding it unnecessary to decide the “difficult issue” of whether a victim’s request for leniency could ever justify a departure sentence since other valid reasons existed to support the departure); State v. Ussery, 543 So. 2d 457 (Fla. 5th DCA 1989)(holding that a victim’s request for downward departure is invalid as a matter of law). Cf. Banks v. State, 732 So. 2d 1065, 1069 (Fla.l999)(finding that the victim’s wishes are “relevant” but that a trial court may enter a downwa…
-
J.R. v. State, 715 So. 2d 1145 (Fla. 5th DCA 1998)…PER CURIAM. AFFIRMED. See § 39.054(l)(a)l, Fla. Stat. (1995); see also D.V.S. v. State, 632 So. 2d 221 (Fla. 5th DCA 1994); State v. Ussery, 543 So. 2d 457 (Fla. 5th DCA), rev. denied, 551 So. 2d 464 (Fla.1989). GRIFFIN, C.J., and COBB and ANTOON, JJ., concur.…
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
- Darion Northrup Castle v. State, 330 So. 2d 10 (Fla. 1976)
- First Nat'l Bank OF Homestead v. Thunderbird Prods. Corp., 380 So. 2d 487 (Fla. 3d DCA 1980)
- Gourley v. State, 432 So. 2d 755 (Fla. 5th DCA 1983)
- State v. White, 532 So. 2d 1083 (Fla. 5th DCA 1988)
- State v. Jefferson, 340 So. 2d 1189 (Fla. 4th DCA 1976)