THE STATE OF FLORIDA, APPELLANT,
v.
MARK A. GREENE, APPELLEE
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The court held that the sentencing requirements of Ree v. State apply prospectively and that the oral reason for downward departure was invalid without a showing of rehabilitation potential.
[1] A judicial decision requiring written reasons for a departure from sentencing guidelines applies prospectively and does not affect sentences imposed prior to its renditio…
[2] An oral reason for a downward departure from sentencing is invalid when the record lacks evidence of a reasonable possibility of rehabilitation.
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Join FLexlaw to unlock all legal intelligenceThe State appealed a sentence, arguing the trial court failed to reduce departure reasons to writing and that the reasons given were invalid. The defe…
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PER CURIAM.
The state, on rehearing raises two grounds seeking to have the sentence herein reversed: 1) That the requirements of Ree v. State, 565 So. 2d 1329 (Fla.1990) were not met by the trial court, in that the grounds for the downward departure were not reduced to writing until two days after the sentencing hearing. The defendant, Greene was sentenced prior to the rendition of Ree, supra. 2) That the grounds given by the trial court for downward departure were not valid.
As to the first issue, we find that Ree v. State, supra, is not applicable to this case. The First District Court of Appeal, when confronted with a similar situation stated:
“ As to the first issue, we hold the trial court did not err in the sentencing procedures used at the time he sentenced appellant. While Ree v. State, 565 So. 2d 1329, 1330-32 (Fla.1990), requires that the written reasons for a departure from sentencing guidelines be produced at the sentencing hearing, the new requirements are only to be applied prospectively. Since appellant’s sentence was imposed prior to rendition of Ree, the new requirements are not applicable to this case and do not compel reversal.” (Emphasis added.)
Henderson v. State, 567 So. 2d 493 at 494 (Fla. 1st DCA 1990). See State v. Lyles, 576 So. 2d 706 (Fla.1991); State v. Williams, 576 So. 2d 281 (Fla.1991); Brown v. State, 565 So. 2d 369 (Fla. 1st DCA 1990).
As to the second issue raised by the state, we find that the oral reason given by the trial court for departure, does not constitute a valid reason for departure, under the facts of the instant case, where there is nothing in the record to indicate a reasonable possibility of rehabilitation of the defendant. See Herrin v. State, 568 So. 2d 920 (Fla.1990).
Therefore, the sentence imposed herein is hereby vacated and the cause is remanded to the trial court for further proceedings consistent herewith. In light of our holding, the defendant may be permitted to withdraw his plea in the trial court.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Morales v. State, 580 So. 2d 788 (Fla. 3d DCA 1991)…after the sentencing hearing] applies prospectively only to sentences imposed after the effective date of Ree, to wit: July 19, 1990. State v. Lyles, 576 So. 2d 706 (Fla.1991); State v. Williams, 576 So. 2d 281 (Fla.1991); see also State v. Greene, 575 So. 2d 787 (Fla. 3d DCA 1991). The sentence in the instant case was imposed on April 23, 1986, and, accordingly, under Lyles and Williams, Ree has no application to this case; we had previously thought that Ree could be applied to a so-called “pipe-line” case,…
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State v. Fields, 602 So. 2d 981 (Fla. 3d DCA 1992)…bility that such treatment will be successful. Expert testimony on the subject would be helpful but is not mandatory where there is other evidence to support the conclusion. Herrin v. State, 568 So. 2d 920, 922 (Fla.1990); see also State v. Greene, 575 So. 2d 787 (Fla. 3d DCA 1991). In the present case there is no such record evidence. The court ordered an evaluation of defendant to be performed after sentencing, but did not have the benefit of that evaluation at sentencing. Further, there are no other fact…
Authorities Cited
- REE v. State, 565 So. 2d 1329 (Fla. 1990)
- State v. Lyles, 576 So. 2d 706 (Fla. 1991)
- Herrin v. State, 568 So. 2d 920 (Fla. 1990)
- Brown v. State, 565 So. 2d 369 (Fla. 1st DCA 1990)
- State v. Williams, 576 So. 2d 281 (Fla. 1991)
- Henderson v. State, 567 So. 2d 493 (Fla. 1st DCA 1990)