MICHAEL ELLISON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Ellison appeals his convictions for first-degree felony burglary and simple battery, challenging both his thirty-year sentence as an improper departure from sentencing guidelines without adequate written reasons and the duplicative battery conviction. The court reversed the simple battery conviction and remanded for resentencing, holding that the trial court's oral reasons for departure, transcribed by a court reporter, do not satisfy the requirement for written reasons, but handwritten reasons on the sentencing scoresheet would suffice.
The court held that the trial court's oral reasons for departure, even when transcribed by a court reporter, do not satisfy the requirement for written reasons, but handwritten reasons placed on the sentencing scoresheet would suffice. The court also held that Ellison cannot be convicted of both the simple battery and the first-degree burglary based on the same act, as the battery was incorporated into the burglary to escalate it to the first-degree offense.
[1] A trial court's oral pronouncement of reasons for a departure sentence, transcribed by a court reporter, is insufficient to comply with the requirement for written reason…
[2] Handwritten reasons for a departure sentence, placed on the bottom of the sentencing scoresheet, are sufficient compliance with the requirement for written statements.
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Join FLexlaw to unlock all legal intelligence“However, handwritten reasons placed on the bottom of the sentencing scoresheet will suffice.”
Establishes the standard for adequate written reasons for sentencing departure when word processing is unavailable.
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Join FLexlaw to unlock all legal intelligenceEllison was convicted of first-degree felony burglary (based on a battery committed during the burglary) and simple battery based on the same act. At …
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SHARP, Chief Judge.
Ellison appeals from a final judgment adjudicating him guilty of both first degree felony burglary1 (because in the course of its commission, he committed a battery) and simple battery2 (based on the same act as was employed for the burglary). He argues the trial court erred in imposing a thirty-year sentence because it departed beyond the presumptive sentencing range of 5⅛ to 7 years in prison, without providing written reasons for the departure. Ellison also argues he should not be convicted for the identical battery more than once.
At the sentencing hearing, the trial court said he intended to depart upwards from the presumptive sentence range for various reasons including psychological trauma to the victim, the short time between Ellison’s release from incarceration for other offenses and the commission of these crimes, and Ellison’s lengthy juvenile record. Rather than provide written reasons for departure, however, the trial judge directed the court reporter to transcribe his oral reasons. He explained, “I do not have a secretarial staff or word processing equipment” to prepare the written reasons.
Early in the days of the sentencing guidelines, we relied upon the court reporter’s transcription of the trial judge’s reasons for imposing a departure sentence as sufficient compliance with the requirement for written statements for departure sentences. Burke v. State, 456 So. 2d 1245 (Fla. 5th DCA 1984); Fla.R.Crim.P. 3.701.-d.ll. However, that has long been held to be insufficient. Jackson v. State, 478 So. 2d 1054 (Fla.1985), receded from on other grounds, Wilkerson v. State, 513 So. 2d 664 (Fla.1987); Davis v. State, 481 So. 2d 562 (Fla. 5th DCA 1986).
We sympathize with the plight of a trial judge who is not provided with a secretary or access to a clerk who can type the judge’s orders. Such penurious conditions should not be tolerated by the judicial branch of government. However, handwritten reasons placed on the bottom of the sentencing scoresheet will suffice. See Torres-Arboledo v. State, 524 So. 2d 403, 414 (Fla.1988), cert. denied, — U.S.—, 109 S.Ct. 250, 102 L.Ed.2d 239 (1988).
With regard to the double battery convictions, we agree with Ellison that both cannot stand. The simple battery in this case was the same act charged, proved and incorporated in the burglary offense to escalate it to a first degree burglary. Thus, the simple battery conviction must be reversed. See Bradley v. State, 540 So. 2d 185 (Fla. 5th DCA 989).
Accordingly, we reverse the simple battery conviction, vacate the sentence im 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. (1987).
. § 784.03, Fla.Stat. (1987).
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Sanders v. State, 621 So. 2d 723 (Fla. 5th DCA 1993)…. See Bundy v. State, 538 So. 2d 445 (Fla.1989); Swain v. State, 579 So. 2d 842 (Fla. 3d DCA), rev. denied, 591 So. 2d 184 (Fla.1991). . See State v. Lyles, 576 So. 2d 706 (Fla.1991). . Cave v. State, 445 So. 2d 341 (Fla.1984); Ellison v. State, 545 So. 2d 480 (Fla. 5th DCA 1989). . See Hargrove v. State, 609 So. 2d 177 (Fla. 2d DCA 1992).…
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Art Crawford v. State, 662 So. 2d 1016 (Fla. 5th DCA 1995)…784.045(l)(a)(2), Fla.Stat. (1991). . § 810.02(1) and (2)(a), Fla.Stat. (1991). . See Foster v. State, 596 So. 2d 1099 (Fla. 5th DCA 1992), approved, 613 So. 2d 454 (Fla.1993); Adams v. State, 547 So. 2d 333 (Fla. 5th DCA 1989); Ellison v. State, 545 So. 2d 480 (Fla. 5th DCA 1989); . See Watson v. State, 646 So. 2d 288 (Fla. 2d DCA 1994); Spradley v. State, 537 So. 2d 1058 (Fla. 1st DCA 1989).…
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Elliot Reno Whatley v. State, 679 So. 2d 1269 (Fla. 2d DCA 1996)…was not completely settled. However, counsel’s failure to raise the issue on appeal is not excused because there was binding case law in effect at the time the appeal was pending upon which to base the double jeopardy argument. See Ellison v. State, 545 So. 2d 480 (Fla. 5th DCA 1989); Bradley v. State, 540 So. 2d 185 (Fla. 5th DCA 1989). See also Cleveland v. State, 587 So. 2d 1145 (Fla.1991) (when robbery is enhanced due to use of a firearm, the use of the same firearm cannot form the basis of a separate con…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. Jackson, 478 So. 2d 1054 (Fla. 1985)
- Torres-Arboledo v. State, 524 So. 2d 403 (Fla. 1988)
- Wilkerson v. State, 513 So. 2d 664 (Fla. 1987)
- Burke v. State, 456 So. 2d 1245 (Fla. 5th DCA 1984)
- Bradley v. State, 540 So. 2d 185 (Fla. 5th DCA 1989)
- Dyer v. State, 534 So. 2d 843 (Fla. 5th DCA 1988)
- Pope v. State, 542 So. 2d 423 (Fla. 5th DCA 1989)
- Davis v. State, 481 So. 2d 562 (Fla. 5th DCA 1986)
- Gallagher v. L.K. Rest. & Motels, Inc., 481 So. 2d 562 (Fla. 5th DCA 1986)