VASTEN E. BLAIR, PETITIONER,
v.
STATE OF FLORIDA, RESPONDENT
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The Florida Supreme Court addressed whether a trial court's written order explaining a departure from sentencing guidelines must be prepared before or contemporaneously with the oral pronouncement of sentence. The court held that under its decision in Smith v. State, a prior requirement that written orders be filed promptly applies to all non-final cases, but a trial judge on resentencing may not impose a sentence exceeding the guidelines.
The trial court properly must vacate and remand the sentence when the written order is not filed timely, consistent with Ree v. State as applied retroactively to non-final cases. However, upon resentencing, the trial judge may not impose a sentence that exceeds the guidelines.
[1] A written order stating the reason for a departure sentence must be prepared and filed contemporaneously with the sentencing hearing.
[2] A judicial decision requiring written reasons for a sentencing departure applies prospectively to all cases not yet final where the issue was raised.
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Join FLexlaw to unlock all legal intelligence“the district court of appeal reversed Blair's sentence but indicated that upon resentencing the orally announced reason for departure if put in writing would suffice”
Describes the lower court's holding that the oral announcement could satisfy the requirement if later memorialized in writing.
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Join FLexlaw to unlock all legal intelligenceBlair was sentenced for armed robbery to a sentence above the recommended guidelines. The trial court orally announced the reason for the departure at…
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PER CURIAM.
We originally accepted jurisdiction to review Blair v. State, 559 So. 2d 349 (Fla. 1st DCA 1990), because of apparent conflict with Pope v. State, 561 So. 2d 554 (Fla.1990), and Shull v. Dugger, 515 So. 2d 748 (Fla.1987). Art. V, § 3(b)(3), Fla.Const. Thereafter, this Court issued several opinions bearing upon the disputed issue, and it is now clear that the decision below conflicts with our decision in Smith v. State, 598 So. 2d 1063 (Fla.1992).
Blair was sentenced for armed robbery which was above the recommended guidelines sentence. Although the trial court announced the reason for the departure at the sentencing, the written order listing this reason was not prepared until after the hearing and was not filed until five days after the hearing. This was contrary to the requirements of our opinion Ree v. State, 565 So. 2d 1329 (Fla.1990), modified, State v. Lyles, 576 So. 2d 706 (Fla.1991), which was published after Blair’s sentencing. As a consequence, the district court of appeal reversed Blair’s sentence but indicated that upon resentencing the orally announced reason for departure if put in writing would suffice.
Subsequently, on rehearing this Court modified its opinion in Ree by giving it only prospective application. However, in Smith v. State, this Court explained that Ree’s reference to prospectivity included its application to all cases not yet final where the issue was raised. Therefore, the court below properly vacated Blair’s sentence and remanded for resentencing. However, under the rationale of Pope v. State and Shull v. Dugger, the trial judge may not impose a new sentence which exceeds the guidelines. We quash the decision below to the extent that it permits a resentencing above the guidelines.
It is so ordered.
SHAW, C.J. and OVERTON, MCDONALD, BARKETT and KOGAN, JJ., concur. GRIMES, J., dissents with an opinion, in which HARDING, J., concurs.
GRIMES, Justice,
dissenting.
This decision illustrates the mischief which can occur if the rules are changed after the game has started. The trial judge had no reason to know that he was committing error by not filing the written reasons for departure which were the same as those orally pronounced until five days after sentencing. However, the problem was cured when our subsequently issued Ree opinion was given only prospective application. We reaffirmed the prospective nature of Ree in State v. Williams, 576 So. 2d 281 (Fla.1991), and State v. Lyles, 576 So. 2d 706 (Fla.1991). Now, we have suddenly changed directions in Smith v. State by holding that Ree must be applied retroactively and receding from Williams and Lyles. This is no way to run a railroad.
I respectfully dissent.
HARDING, J., concurs.
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Davis v. State, 661 So. 2d 1193 (Fla. 1995)…y filed his notice of appeal. The trial judge granted Davis’s postconviction motion on the basis of Ree and Smith, finding that he need not reach the jurisdictional issue. The State appealed and the district court reversed, based on Blair v. State, 598 So. 2d 1068 (Fla.1992). In Blair, which we issued on the same day as our decision in Smith, we stated that the prospectivity requirement in Ree applied “to all cases not final where the issue was raised.” 598 So. 2d at 1069. Because Davis failed to raise the Re…1 / 2
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Downs v. State, 616 So. 2d 444 (Fla. 1993)…nal episode may only be imposed concurrently and not consecutively. Here there were separate distinct crimes, each of which required a minimum mandatory sentence. . We disapprove Blair v. State, 559 So. 2d 349 (Fla. 1st DCA 1990), quashed in part, 598 So. 2d 1068 (Fla.1992), wherein the court disallowed stacking a 25-year minimum mandatory sentence for first-degree murder and a three-year minimum for using a firearm during a robbery.…
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State v. Robby Hogan, 611 So. 2d 78 (Fla. 4th DCA 1992)…son portion of his sentence. We recognize that the appellee has not contested the state’s argument that reversal is mandated by Ree v. State, 565 So. 2d 1329 (Fla.1990), receded from by, Smith v. State, 598 So. 2d 1063 (Fla.1992) and Blair v. State, 598 So. 2d 1068 (Fla.1992), modified by, State v. Lyles, 576 So. 2d 706 (Fla.1991), Pope v. State, 561 So. 2d 554 (Fla.1990), and Owens v. State, 598 So. 2d 64 (Fla.1992), which require a guidelines sentence where the trial court has failed to enter written reasons…
Previewing 3 of 9 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)
- Shull v. Dugger, 515 So. 2d 748 (Fla. 1987)
- REE v. State, 565 So. 2d 1329 (Fla. 1990)
- Rhoda Smith v. State, 598 So. 2d 1063 (Fla. 1992)
- State v. Lyles, 576 So. 2d 706 (Fla. 1991)
- State v. Williams, 576 So. 2d 281 (Fla. 1991)
- Vasten E. Blair v. State, 559 So. 2d 349 (Fla. 1st DCA 1990)