JAMES LEE MARTIN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE

Fla. 4th DCA | 1992-05-27
No. 89-2518
HERSEY, and STONE, JJ., and OWEN, WILLIAM C., Senior Judge, concur.
599 So. 2d 719 Florida District Court of Appeal, Fourth District (1992) Positive Treatment
Cited by 2 cases

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.

Synopsis

The Florida Fourth District Court of Appeal affirmed Martin's convictions but reversed his sentence due to the trial court's failure to render written reasons for an upward departure from sentencing guidelines contemporaneously with the sentencing hearing. The court also ordered correction of charging errors in the judgment.


Holding

The convictions were affirmed, but the sentence was reversed and remanded for resentencing within the guidelines because the written order was not rendered contemporaneously with sentencing and did not comply with the requirements established in Ree v. State and Pope v. State. Upon remand, the trial court cannot depart from the guidelines.


Headnotes

[1] A trial court's oral findings in the transcript are sufficient for habitual offender status, even if the written order is defective.

[2] A written order setting forth reasons for an upward departure sentence must be rendered contemporaneously with the sentencing hearing.

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Key Quotes

“The requirement that the written order be rendered contemporaneously with the sentencing hearing is now well settled.”

Establishes the controlling legal standard that required reversal of the sentence in this case

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Facts & Procedural History

Martin was convicted of kidnapping and robbery. He was declared a habitual offender under Florida Statutes section 775.084(3) (1987). The trial court …

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Opinion of the Court
PER CURIAM.

PER CURIAM.

We affirm appellant’s convictions. In doing so, we specifically reject on the authority of Ferguson v. State, 533 So. 2d 763 (Fla.1988), and Faison v. State, 426 So. 2d 963 (Fla.1983), appellant’s contention that the trial court erred in denying his motion for acquittal on the kidnapping count.

Appellant was declared a habitual offender under the provisions of section 775.-084(3), Florida Statutes (1987). The 1987 version of the statute required the trial court to make an express finding, as a predicate to habitualization, that an extended term of incarceration was necessary for the protection of the public. Eutsey v. State, 383 So. 2d 219 (Fla.1980). See also Walker v. State, 462 So. 2d 452 (Fla.1985). The findings need not be written; it is sufficient if they appear in the transcript of the habitualization hearing. Parker v. State, 546 So. 2d 727 (Fla.1989); Eutsey, 383 So. 2d at 226 (citing King v. State, 369 So. 2d 1031 (Fla. 4th DCA 1979)).

We find the oral reasons contained in the transcript sufficient for habitualization, and we affirm on that basis.

However, the written order is defective in that it resulted from an inappropriate delegation of the responsibility of the trial court to make these findings. Barbera v. State, 505 So. 2d 413, 414 (Fla.1987) (quoting Johnson v. State, 483 So. 2d 839 (Fla. 2d DCA 1986)), receded from on other grounds, Pope v. State, 561 So. 2d 554 (Fla.1990).

Appellant’s sentence constitutes an upward departure from the guidelines. The prosecutor prepared the order containing reasons for the departure, but added his own findings to those made by the trial judge. The judge signed and rendered the order two weeks after the sentencing hearing. The order presents several problems.

First, we do not find here the complete and therefore unauthorized delegation of authority condemned in Barbera and Johnson that we found in the written habituali-zation findings.

Thus, but for another and fatal deficiency, we simply would excise from the order those findings added by the prosecutor and then consider whether the remaining reasons, those articulated by the trial court, warranted the upward departure. Simmons v. State, 496 So. 2d 911 (Fla. 2d DCA 1986). Our opinion in Mulligan v. State, 566 So. 2d 76 (Fla. 4th DCA 1990), condemning the wholesale delegation of responsibility to make the necessary findings, should not be interpreted as holding that an order including more than the reasons articulated by the trial court is thereby rendered entirely invalid.

The fatal flaw, however, is the tardy rendition of the order setting out the reasons for the upward departure. The requirement that the written order be rendered contemporaneously with the sentencing hearing is now well settled. Ree v. State, 512 So. 2d 1085 (Fla. 4th DCA 1987), quashed but rule adopted, 565 So. 2d 1329, 1331 (Fla.1990). 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).

Moreover, the Florida Supreme Court has recently held in Owens v. State, 598 So. 2d 64 (Fla.1992), that when a departure sentence is reversed due to the trial court’s failure to provide contemporaneous reasons in accordance with Ree, the rule in Pope applies and the trial court cannot depart from the guidelines on remand. Because Ree and Pope are applicable to the instant case, we reverse appellant’s sentence and remand this case to the trial court for resentencing with no possibility of departure from the guidelines. See Pope, 561 So. 2d at 556. See also Stanford v. State, 576 So. 2d 737, 741 (Fla. 4th DCA), rev. denied, 587 So. 2d 1329 (Fla.1991).

Finally, we note that the judgment indicates that appellant was convicted of “Kidnapping (Armed)” which the state concedes is error. Similarly, the state concedes the reference to “Robbery (Armed)” is error. Both errors should be corrected upon remand. AFFIRMED IN PART; REVERSED IN PART; REMANDED.

HERSEY, and STONE, JJ., and OWEN, WILLIAM C., Senior Judge, concur.


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Citator

Cited By

  • Reid v. State, 673 So. 2d 972 (Fla. 1st DCA 1996)
    …secutor to perform the clerical task of preparing a written order consonant with the court’s decision. In fact, the written order incorporated the court’s announced reasons for departure. The law does not preclude such a delegation. Martin v. State, 599 So. 2d 719, 720 (Fla. 4th DCA 1992) (approving that portion of a departure order, prepared by the prosecutor, that comported with the reasons orally articulated by the sentencing court); Johnson, 483 So. 2d at 840. We find no merit in the appellant’s suggesti…

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