WILLIAM ADRIAN BURGESS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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William Adrian Burgess appeals his sentences for two counts of cocaine sale and the imposition of court costs. The Florida appellate court quashes the sentences as unauthorized departures from sentencing guidelines and strikes the cost order due to lack of prior notice.
The sentences are quashed as unauthorized departures from the sentencing guidelines because no reasons for departure were given and the imposed sentences fell below the guideline range. The cost awards are struck as improper due to lack of prior notice to the defendant, and the case is remanded for resentencing.
[1] Sentences deviating from sentencing guidelines without stated reasons are unauthorized.
[2] A trial court's oral pronouncements at sentencing do not control when they conflict with written sentencing orders and no clerical error is apparent.
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Join FLexlaw to unlock all legal intelligence“These were clearly departure sentences unauthorized by the guidelines. State v. VanKooten, 522 So.2d 830 (Fla.1988).”
Establishes the core holding that the imposed sentences violated sentencing guidelines by departing without proper authorization.
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Join FLexlaw to unlock all legal intelligenceBurgess was convicted of two counts of sale of cocaine under Florida statutes. His sentencing guidelines score of 85 points placed him in the second b…
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SHARP, W., Judge.
Burgess appeals the sentences he received after being convicted of two counts of sale of cocaine in violation of sections 893.13(l)(a)(l) and 893.03(2)(a)(4) and the imposition of costs without notice. We quash the sentence and strike the order imposing costs. Burgess’ score of 85 points placed him in the second bracket of the sentencing guidelines: Community control or 12 to 30 months in prison. Without giving any reasons for departure, the trial judge sentenced him to two concurrent sentences of 6 months incarceration followed by 2 years on community control. These were clearly departure sentences unauthorized by the guidelines. State v. VanKooten, 522 So. 2d 830 (Fla.1988).
The state argues that the trial judge’s pronouncements at sentencing should control, and that the written sentences merely contain a clerical error. The trial judge at one point in the sentencing hearing placed Burgess on community control for 30 months, with 6 months to be served in county jail. The judge later changed his mind and imposed the split sentences reflected in the written sentencing orders, 6 months incarceration followed by 2 years community control. Although it is not a departure from the second bracket to impose a county jail term as a condition of community control, see Tillman v. State, 555 So. 2d 940 (Fla. 5th DCA 1990), that was not the sentence actually imposed, and no clerical error is apparent.
The trial judge abruptly imposed court costs ($232.50) and investigative costs ($200.00) at the sentencing hearing, after his second attempt to pronounce sentence. (Three different sentences were orally announced at the sentencing hearing.) No objection was made by Burgess or defense counsel. Nor did the trial court give Burgess the right to challenge the costs within a certain time. Compare Bull v. State, 548 So. 2d 1103 (Fla.1989).
To uphold the propriety of the cost award, the state cites Bryant v. State, 546 So. 2d 762 (Fla. 5th DCA 1989). In Bryant, the court upheld a cost award because “[t]he record reveals that Bryant was notified that costs would be imposed against him during the sentencing hearing.” Id. at 763. No such prior notice is apparent in this record.
Accordingly, the cost awards must be stricken as improper because of lack of notice. Harriel v. State, 520 So. 2d 271 (Fla.1988); Jenkins v. State, 444 So. 2d 947 (Fla.1984). Failure to object to costs at the sentencing hearing does not foreclose a defendant from raising this issue on appeal. Harriel.
Costs STRICKEN; sentence QUASHED; cause REMANDED.
GOSHORN and HARRIS, JJ., concur.
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Ecenrode v. State, 576 So. 2d 967 (Fla. 5th DCA 1991)…ges were given discretion in the first place, before prison overcrowding. The defendant was not given notice before costs were imposed. See Harriel v. State, 520 So. 2d 271 (Fla.1988); Jenkins v. State, 444 So. 2d 947 (Fla.1984); Burgess v. State, 569 So. 2d 829 (Fla. 5th DCA 1990); Rowe v. State, 558 So. 2d 174 (Fla. 5th DCA 1990). Sentence affirmed; costs reversed, remanded for proper imposition of costs. COBB and DIAMANTIS, JJ„ concur.…
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Williams v. State, 576 So. 2d 1375 (Fla. 5th DCA 1991)…ows the theft victim recovered the stolen television and we reverse and strike the award of court costs imposed without notice and hearing. See Wood v. State, 544 So. 2d 1004 (Fla.1989); Harriel v. State, 520 So. 2d 271 (Fla.1988); Burgess v. State, 569 So. 2d 829 (Fla. 5th DCA 1990); McMahon v. State, 561 So. 2d 1284 (Fla. 5th DCA 1990); Clark v. State, 560 So. 2d 264 (Fla. 5th DCA 1990). AFFIRMED in part; REVERSED in part. COWART, GRIFFIN and DIAMANTIS, JJ., concur.…
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Phelps v. State, 583 So. 2d 1120 (Fla. 5th DCA 1991)…ed range of community control or one to four and one-half years incarceration. This combination of incarceration and community control constitutes a departure from the guidelines. See State v. VanKooten, 522 So. 2d 830 (Fla. 1988); Burgess v. State, 569 So. 2d 829 (Fla. 5th DCA 1990); Harris v. State, 564 So. 2d 283 (Fla. 5th DCA 1990). Because the record contains no written departure reasons, the sentence must be reversed and the case remanded for resentencing. JUDGMENT AFFIRMED; SENTENCE REVERSED and REMA…
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
- Jenkins v. State, 444 So. 2d 947 (Fla. 1984)
- Bull v. State, 548 So. 2d 1103 (Fla. 1989)
- Harriel v. State, 520 So. 2d 271 (Fla. 1988)
- State v. VanKOOTEN, 522 So. 2d 830 (Fla. 1988)
- State v. Bodine, 522 So. 2d 830 (Fla. 1988)
- Moulton Keane, M.D. v. Honorable Robert Lance Andrews, 555 So. 2d 940 (Fla. 4th DCA 1990)
- Bryant v. State, 546 So. 2d 762 (Fla. 5th DCA 1989)