STATE OF FLORIDA, PETITIONER,
v.
ROBERTO L. BETANCOURT, RESPONDENT
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The Florida Supreme Court held that when a trial judge imposes a sentence that constitutes a departure from sentencing guidelines without realizing it and without providing written reasons, the judge must be given an opportunity on remand to reconsider whether departure is appropriate and provide valid reasons, rather than being mandated to resentence within the guidelines.
The trial judge must be allowed to reconsider on remand whether departure from the sentencing guidelines is appropriate and, if so, to set forth valid reasons for departure. The trial court is not mandated to resentence within the guidelines, distinguishing this case from situations where a judge knowingly imposed a departure sentence with invalid reasons.
[1] A sentence exceeding the recommended guidelines range, even if imposed without awareness of the departure, constitutes a departure sentence requiring written reasons.
[2] When a sentence is reversed as a departure sentence due to the trial court's lack of awareness and failure to provide written reasons, the trial court may reconsider depa…
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Join FLexlaw to unlock all legal intelligence“it is proper for a judge to reconsider whether a departure from the guidelines is appropriate ... on remand when the trial judge has not yet had an opportunity to consider reasons for departure”
Establishes the core holding that judges may reconsider departure appropriateness when unaware they were imposing a departure sentence
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Join FLexlaw to unlock all legal intelligenceRoberto L. Betancourt was convicted of armed robbery with a deadly weapon. The trial judge sentenced him as a youthful offender to a split sentence of…
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OVERTON, Justice.
This cause is before us on petition to review Betancourt v. State, 550 So. 2d 1121 (Fla. 3d DCA 1989). The district court reversed Betancourt’s sentence, finding that the trial judge had departed from the sentencing guidelines without written reasons, and directed that Betancourt be re-sentenced within the guidelines range on remand. We have jurisdiction because of conflict with Roberts v. State, 534 So. 2d 1225 (Fla. 1st DCA 1988), approved, 547 So. 2d 129 (Fla.1989), and Waldron v. State, 529 So. 2d 772 (Fla. 2d DCA 1988) (en banc). Art. V, § 3(b)(3), Fla. Const. For the reasons expressed, we quash that part of the district court decision which mandates that the trial court resentence within the sentencing guidelines.
The relevant facts reflect that Roberto L. Betancourt was convicted of armed robbery with a deadly weapon. The trial judge sentenced him as a youthful offender to a split sentence of four years of incarceration followed by two years of community control. There is no indication in the record that the trial court considered this sentence to be a departure from the sentencing guidelines, and the trial court gave no reasons for departure. The Third District Court reversed Betancourt’s sentence because the aggregate of his term of incarceration and his term of community control exceeded the recommended guidelines sentence of three and one-half to four and one-half years incarceration.
The district court held that the sentence in this case was a departure sentence, and that valid reasons for such departure must be set forth in writing under the Youthful Offender Act, section 958.04(3), Florida Statutes (1987).
The district court remanded the case to the trial court for resentencing within the guidelines, relying on its prior decision in Harrison v. State, 523 So. 2d 726 (Fla. 3d DCA 1988).
Although we agree with the Third District Court of Appeal that Betancourt’s original sentence must be characterized as a departure sentence, see State v. Mestas, 507 So. 2d 587 (Fla.1987), we disagree with the district court’s holding that the trial court must sentence Betancourt within the guidelines on remand. In our recent opinion in Roberts, we held that “it is proper for a judge to reconsider whether a departure from the guidelines is appropriate ... on remand” when the trial judge has not yet had an opportunity to consider reasons for departure. 547 So. 2d at 131. We specifically disapproved Harrison. In Roberts, the trial judge imposed an improper sentence, characterized by the district court as a departure sentence, because of an improperly calculated scoresheet. He did not know that he was imposing a departure sentence, which required written reasons for departure. Similarly, in the instant case, the trial judge did not know that she was imposing a departure sentence, which required written reasons for departure. We cannot find any material distinction between these two cases.
However, we can distinguish both of these situations from an initial sentencing in which the trial judge has used invalid reasons in imposing a departure sentence.
We conclude, in accordance with Roberts, that the trial judge in the instant case must be allowed to consider on remand whether departure is appropriate and, if so, to set forth valid reasons for departure.
Accordingly, we approve the Third District Court of Appeal’s reversal of Betanc- ourt’s sentence but disapprove its instruction that Betancourt be resentenced within the sentencing guidelines on remand. The district court is directed to remand with directions to comply with the views expressed in this opinion.
It is so ordered.
EHRLICH, C.J., and McDONALD, SHAW, BARRETT, GRIMES and KOGAN, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (122 total)
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Jones v. State, 559 So. 2d 204 (Fla. 1990)…he law of the case previously set forth in Jones I and Jones II. See Strazzulla v. Hendrick, 177 So. 2d 1 (Fla.1965). In our recent decision in Roberts v. State, 547 So. 2d 129 (Fla.1989), we approved Waldron. In Roberts and in State v. Betancourt, 552 So. 2d 1107 (Fla.1989), we distinguished those resentencings where the judge in the original sentencing did not know that he had to set forth reasons for departure from those resen-tencings where the judge previously had departed from the guidelines and set for…
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State v. Henriquez, 717 So. 2d 1087 (Fla. 3d DCA 1998)…d be a case in which we would remand in order to allow the trial court to state departure reasons, be [*1088] cause there is no indication that the trial court realized that this sentence amounted to a departure disposition. See State v. Betancourt, 552 So. 2d 1107, 1108-09 (Fla.1989). Affirmed.3 . The plea also covered violations of probation in other pending cases, the disposition of which is not challenged by the State here. . For present purposes we assume that the State’s argument is not barred by the…
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Chauncey L. Davis v. State, 677 So. 2d 1366 (Fla. 4th DCA 1996)…he record does not indicate that the trial judge knew he was departing from the guidelines. On resentencing, the trial court may determine if departure is appropriate and, if so, explain in writing the reasons for the departure. State v. Betancourt, 552 So. 2d 1107 (Fla.1989). (2) As both sides agree, the judgment incorrectly designates the attempted robbery conviction as a second degree felony, instead of a third degree felony. Upon remand, an amended judgment shall be entered reflecting the correction. (3)…
Previewing 3 of 122 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Doyal Powell Roberts v. State, 547 So. 2d 129 (Fla. 1989)
- State v. Mestas, 507 So. 2d 587 (Fla. 1987)
- Waldron v. State, 529 So. 2d 772 (Fla. 2d DCA 1988)
- Harrison v. State, 523 So. 2d 726 (Fla. 3d DCA 1988)
- Doyal Powell Roberts v. State, 534 So. 2d 1225 (Fla. 1st DCA 1988)
- Betancourt v. State, 550 So. 2d 1121 (Fla. 3d DCA 1989)