MICHAEL JOHN WHITAKER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Appellant was convicted of attempted murder in the second degree and sentenced to life imprisonment based on a departure from sentencing guidelines. The Florida Supreme Court's decision in Owens v. State required reversal because the trial court failed to provide contemporaneous written reasons for the departure, and appellate precedent prohibits departure on remand in such circumstances.
When a departure sentence is reversed due to the trial court's failure to provide contemporaneous reasons in accordance with Ree v. State, the trial court cannot depart from the guidelines on remand and must resentence within the guidelines pursuant to Pope v. State.
[1] A departure sentence reversed for failure to provide contemporaneous written reasons requires resentencing within the guidelines.
[2] A trial court may not depart from sentencing guidelines on remand if the original departure sentence was reversed due to the lack of contemporaneous written reasons.
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Establishes the primary basis for reversal under Ree v. State
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Join FLexlaw to unlock all legal intelligenceAppellant Michael John Whitaker was convicted of attempted murder in the second degree with a deadly weapon. At sentencing, the trial court departed f…
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PER CURIAM.
Appellant was convicted of attempted murder in the second degree with a deadly weapon. At appellant’s sentencing hearing, the trial court determined that appellant’s unscored juvenile convictions and his escalating pattern of criminal activity were valid reasons for departure from the sentencing guidelines. The trial court sentenced appellant to life imprisonment. Five days later, the trial court entered a written order of aggravation, specifically outlining its reasons for departure.
While we find no merit in appellant’s other arguments, appellant correctly asserts that his sentence must be reversed due to the trial court’s failure to file a contemporaneous written order of departure. Ree v. State, 565 So. 2d 1329 (Fla.1990). Furthermore, the trial court improperly relied upon appellant’s juvenile convictions as a reason for departure because appellant’s juvenile record was not sufficiently significant. Puffinberger v. State, 581 So. 2d 897 (Fla.1991). However, a pattern of criminal activity which reflects an escalation has been recognized as a basis for departure. Williams v. State, 581 So. 2d 144 (Fla.1991). The question then remained whether the trial court could once again depart from the guidelines on remand despite its failure to provide contemporaneous written reasons in accordance with Ree.
The general rule is that where a departure sentence is reversed because it is not supported by written reasons, the trial court must resentence within the guidelines. Pope v. State, 561 So. 2d 554 (Fla.1990). However, in Owens v. State, 563 So. 2d 180 (Fla. 1st DCA 1990), the court concluded that where valid reasons for departure are given, albeit untimely, Pope does not apply and, on remand, the trial court may again render a departure sentence. See also Adkinson v. State, 590 So. 2d 480 (Fla. 1st DCA 1991). On December 13, 1990, the Florida Supreme Court accepted jurisdiction in Owens, and this court stayed its consideration of the instant appeal.
In Owens v. State, 598 So. 2d 64 (Fla.1992), the Florida Supreme Court quashed the decision of the First District Court of Appeal and held that when a departure sentence is reversed due to the trial court s failure to provide contemporaneous reasons in accordance with Ree, Pope applies and the trial court cannot depart from the guidelines on remand. Both Ree and Pope are applicable to the instant appeal. Accordingly, we reverse appellant’s sentence and remand this case to the trial court “for resentencing with no possibility of departure from the guidelines.” Pope, 561 So. 2d at 556.
GLICKSTEIN, C.J., ANSTEAD, J., and WALDEN, JAMES H., Senior Judge, concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Jones v. State, 602 So. 2d 604 (Fla. 2d DCA 1992)…required to issue written reasons for a departure sentence contemporaneous with — i.e., the same day as — the issuance of that sentence. Ree v. State, 565 So. 2d 1329 (Fla.1990); State v. Lyles, 576 So. 2d 706 (Fla.1991). See also Whitaker v. State, 597 So. 2d 933 (Fla. 4th DCA 1992). Failure to do so requires reversal of the departure sentence and remand for resentencing within the guidelines, regardless that the reason for the departure may have been valid. Owens v. State, 598 So. 2d 64 (Fla.1992); Pope v.…
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Adams v. State, 695 So. 2d 860 (Fla. 2d DCA 1997)…accord with Bee v. State, 565 So. 2d 1329 (Fla.1990), Pope v. State, 561 So. 2d 554 (Fla.1990) applies and the trial court cannot depart from the guidelines on remand.]. See also Jones v. State, 602 So. 2d 604 (Fla. 2d DCA 1992); Whitaker v. State, 597 So. 2d 933 (Fla. 4th DCA 1992). Accordingly, we reverse the departure sentence imposed and remand for resentencing within the guidelines. PARKER and NORTHCUTT, JJ„ concur.…
Authorities Cited
- Pope v. State, 561 So. 2d 554 (Fla. 1990)
- REE v. State, 565 So. 2d 1329 (Fla. 1990)
- Williams v. State, 581 So. 2d 144 (Fla. 1991)
- Puffinberger v. State, 581 So. 2d 897 (Fla. 1991)
- Owens v. State, 598 So. 2d 64 (Fla. 1992)
- Owens v. State, 563 So. 2d 180 (Fla. 1st DCA 1990)
- Wilmer Ray Adkinson v. State, 590 So. 2d 480 (Fla. 1st DCA 1991)