LARRY SAPP, APPELLANT,
v.
STATE OF FLORIDA, 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 defendant cannot use a subsequent opinion to readdress a prior appellate decision where a valid written reason for departure existed at the time of remand.
Appellant received a departure sentence without written reasons, which was reversed. After subsequent resentencing and appeals, the trial court again …
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 Written Reasons For Departure cases and more on FLexlaw
STONE, Judge.
We affirm appellant’s conviction and sentence. We have considered Pope v. State, 561 So. 2d 554 (Fla.1990), but deem it inapplicable. In 1984 appellant received a departure sentence without written reasons. That sentence was reversed in 1988, this court noting that on remand the appellant was to be sentenced within the guidelines or the trial court should set out reasons for departure in writing. Sapp v. State, 522 So. 2d 1006 (Fla. 4th DCA 1988) (Sapp I). In a subsequent appeal following resentencing this court reversed the sentence, holding two of three written reasons for departure invalid, and remanded for resentencing in accordance with Albritton v. State, 476 So. 2d 158 (Fla.1985). Sapp v. State, 543 So. 2d 400 (Fla. 4th DCA 1989) (Sapp II). Upon resentencing the trial court departed, in writing, on the ground previously upheld.
Sapp now claims that since his first sentence (Sapp I) was reversed because the trial court failed to put departure reasons in writing, he must now be sentenced within the guidelines, following Pope v. State, 561 So. 2d 554 (Fla.1990). See State v. Smith, 15 F.L.W. 1520, — So. 2d-(Fla. 3d DCA June 5, 1990).
We note that in Pope, Justice Grimes, concurring at 556, stated, “[Departure sentences which have become final that were reimposed after remand for initially failing to provide written statements will not be subject to collateral attack.” We conclude that appellant may not utilize the subsequent opinion in Pope v. State to readdress, here in Sapp III, this court’s decision in Sapp II, where at the time of remand there was a valid written reason for departure. Cf. Owens v. State, 563 So. 2d 180 (Fla. 1st DCA 1990).
Therefore, the judgment and sentence are affirmed.
WARNER, J., and WALDEN, JAMES H., (Retired) Associate Judge, concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
McGEE v. State, 575 So. 2d 737 (Fla. 4th DCA 1991)…PER CURIAM. Affirmed on both points. As to point I, see Johnson v. State, 573 So. 2d 1052 (Fla. 4th DCA 1991). GLICKSTEIN, WARNER and GARRETT, JJ., concur.…
Authorities Cited
- Pope v. State, 561 So. 2d 554 (Fla. 1990)
- City OF Atl. Beach v. Bull, 476 So. 2d 158 (Fla. 1985)
- Albritton v. State, 476 So. 2d 158 (Fla. 1985)
- Owens v. State, 563 So. 2d 180 (Fla. 1st DCA 1990)
- Sapp v. State, 522 So. 2d 1006 (Fla. 4th DCA 1988)
- Sapp v. State, 543 So. 2d 400 (Fla. 4th DCA 1989)
- State v. Palmer, 543 So. 2d 400 (Fla. 4th DCA 1989)