GENERO MUNIZ VARA, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that the trial court lost jurisdiction to file written reasons for an upward departure sentence after the notice of appeal was filed.
Defendant was resentenced outside the sentencing guidelines, and a notice of appeal was filed. Subsequently, the trial court filed written reasons for…
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PARKER, Judge.
Genero Vara appeals upward departure sentences imposed against him on resentencing for second-degree murder. We reverse and remand for sentencing within the guidelines.
This is the second occasion Vara has been before this court on a sentencing issue. In Vara v. State, 546 So. 2d 1071 (Fla. 2d DCA), review denied, 554 So. 2d 1169 (Fla.1989), this court affirmed Vara’s conviction, vacated his sentence, and remanded the case “[fjor entry of a written departure order delineating ... three valid departure reasons if it so chooses.”
In this appeal, Vara challenges the trial court’s submission of written reasons for the departure on resentencing after the notice of this appeal was filed. The relevant dates are:
August 19, 1989 — Vara resentenced outside of the sentencing guidelines
September 25, 1989 — Notice of appeal filed
October 4, 1989 — Written reasons for upward departure filed
We conclude that at the time the departure reasons were filed the notice of appeal had vested jurisdiction in this court, and the trial court was without jurisdiction over the case. See Hawryluk v. State, 543 So. 2d 1318 (Fla. 5th DCA 1989). Because the written reasons which were entered for exceeding the guidelines cannot be considered by this court, in the absence of written departure grounds, Poye v. Stateu 561 So. 2d 554 (Fla.1990) requires this court to remand this case for resentencing within the sentencing guidelines. See also Day v. State, 573 So. 2d 1022 (Fla. 2d DCA 1991); Johnson v. State, 566 So. 2d 609 (Fla. 4th DCA 1990).
Reversed and remanded for resentencing within the sentencing guidelines.
SCHEB, A.C.J., and THREADGILL, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Jolene Pausch v. State, 596 So. 2d 1216 (Fla. 2d DCA 1992)…ed at the moment of sentencing, they are not before this court. The notice of appeal divested the trial court of jurisdiction to enter an untimely departure order. Thus, we have not considered the departure grounds in this appeal. See Vara v. State, 575 So. 2d 306 (Fla. 2d DCA 1991). Accordingly, based upon the foregoing, we vacate Pausch’s convictions and sentences and remand for a new trial. DANAHY, A.C.J., and CAMPBELL, J., concur.…
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Martin v. State, 591 So. 2d 301 (Fla. 2d DCA 1991)…the new order and that a departure sentence is now forbidden under the requirements of contemporaneity described in Ree v. State, 565 So. 2d 1329 (Fla.1990). We disagree. We find this set of facts to be distinguishable from those in Vara v. State, 575 So. 2d 306 (Fla. 2d DCA 1991). In Vara, the court failed to prepare an order of departure until after the defendant was sentenced and the notice of appeal had been filed. In this case, the court contemporaneously prepared and filed the order with the clerk, bu…
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Clenney Terrell Davis v. State, 606 So. 2d 470 (Fla. 1st DCA 1992)…iling of the notice of appeal had vested jurisdiction in the appellate court. The sentence was vacated and the cause remanded for proper resentencing. Id., 543 So. 2d at 1318; Pausch v. State, 596 So. 2d 1216, 1220 (Fla. 2d DCA 1992); Vara v. State, 575 So. 2d 306 (Fla. 2d DCA 1991). We vacate the unauthorized 15-year departure sentence and remand for the trial court to resentence Appellant within the guidelines. Pope v. State, 561 So. 2d 554 (Fla.1990); Blair v. State, 601 So. 2d 1340 (Fla. 1st DCA 1992) (o…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Pope v. State, 561 So. 2d 554 (Fla. 1990)
- Genaro Muniz Vara v. State, 546 So. 2d 1071 (Fla. 2d DCA 1989)
- Stenson v. State, 573 So. 2d 1022 (Fla. 2d DCA 1991)
- Hawryluk v. State, 543 So. 2d 1318 (Fla. 5th DCA 1989)
- Patterson v. State, 566 So. 2d 609 (Fla. 4th DCA 1990)
- Maltos v. State, 566 So. 2d 609 (Fla. 4th DCA 1990)