ALAN A. ABT, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The Fourth District Court of Appeal reversed a departure sentence imposed by the trial court, finding that the written order of departure was entered after the trial court lost jurisdiction and did not comply with contemporaneous entry requirements established in prior appellate decisions.
The court reversed the sentence, holding that the trial court lost jurisdiction when the written order of departure was entered after the notice of appeal was filed, and that the order failed to comply with the requirement of contemporaneous entry. The court remanded for re-sentencing with instructions that the trial court may only consider the one previously approved reason for departure (escalating pattern of criminal conduct).
[1] A trial court loses jurisdiction over a case once a notice of appeal has been filed.
[2] A written order of departure from sentencing guidelines must be entered contemporaneously with the sentencing hearing.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“the record remains unclear as to whether the trial court would depart from the recommended guidelines sentence based solely upon appellant's escalating pattern of criminal activity”
Establishes that the trial court's reliance on previously-rejected reasons in its oral pronouncement created ambiguity about whether it could support a departure based only on the approved reason
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Join FLexlaw to unlock all legal intelligenceAppellant Abt was sentenced to 25 years in prison with a departure from sentencing guidelines. The trial court originally provided seven reasons for d…
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[*335] DELL, Judge.
In Abt v. State, 504 So. 2d 548 (Fla. 4th DCA 1987), this court rejected seven of the eight reasons given by the trial court to aggravate appellant’s sentence. We held, however, that the record supported the trial court’s departure from the guidelines based upon appellant’s escalating pattern of criminal conduct and that this one reason furnished sufficient grounds therefor under the amendment to section 921.001(5), Florida Statutes (1987).
In Abt v. State, 541 So. 2d 614 (Fla.1988), the supreme court reversed this court’s decision and held that the amendment to section 921.001(5) applied only to offenses committed after its effective date. On remand, the trial court again sentenced appellant to twenty-five years in prison and announced that it was adopting the second reason set forth in its April, 1986, written order of departure (escalating pattern of criminal conduct) and the grounds set forth in an order of departure dated June, 1987. The court did not enter a written order of departure until August 8, 1989, five days after appellant filed his notice of appeal.
We must again reverse the trial court’s sentence.
We find merit in appellant’s arguments that since the trial court entered its order five days after appellant filed his notice of appeal from the sentence, it had lost its jurisdiction over the case; the written order did not include the reasons that the trial court orally gave for departure; and the order was not entered contemporaneously with the sentencing hearing as required in Ree v. State, 14 F.L.W. 565 (Nov. 16, 1989). We also find merit in appellant’s argument that since the trial court made reference during its oral pronouncement of sentence to the seven reasons which this court held invalid in Abt I, the record remains unclear as to whether the trial court would depart from the recommended guidelines sentence based solely upon appellant’s escalating pattern of criminal activity.
Accordingly, we reverse the sentence and remand this cause for further proceedings. The trial court is directed to either sentence appellant within the guidelines or, should the trial court elect to depart from the guidelines, to enter an appropriate contemporaneous written order setting forth its reason for departure. The trial court shall not be permitted to consider reasons for departure other than the one reason previously approved by this court. See Shull v. Dugger, 515 So. 2d 748 (Fla.1987).
REVERSED and REMANDED.
WARNER and GARRETT, JJ., concur.
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Cited By
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State v. Shorter, 814 So. 2d 1117 (Fla. 4th DCA 2002)…itten findings, to sustain the trial court’s decision. Pease v. State, 712 So. 2d 374 (Fla.1997). This Court has previously reversed and remanded a case to the trial court to clarify the basis for departing from a guidelines sentence. Abt v. State, 560 So. 2d 334 (Fla. 4th DCA 1990). Indeed, “[a]n appellate court is obliged to uphold a departure sentence if one of the reasons for the departure is valid, even if the remaining departure reasons are invalid.” Perry v. State, 714 So. 2d 563, 564 (Fla. 1st DCA 19…
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Aurther Landers v. State, 691 So. 2d 550 (Fla. 4th DCA 1997)…otion and declared Appellant a violent felony habitual offender. It is well settled that once a notice of appeal has been filed, jurisdiction vests in the appellate court. E.g., Dailey v. State, 575 So. 2d 237, 238 (Fla. 2d DCA 1991); Abt v. State, 560 So. 2d 334, 335 (Fla. 4th DCA 1990). In the instant case, since the notice of appeal was filed before the trial court entered its order declaring Appellant a habitual violent felony offender, the trial court was without jurisdiction to enter such an order. Dav…
Authorities Cited
- Shull v. Dugger, 515 So. 2d 748 (Fla. 1987)
- ABT v. State, 504 So. 2d 548 (Fla. 4th DCA 1987)
- ABT v. State, 541 So. 2d 614 (Fla. 1989)