STATE OF FLORIDA, APPELLANT,
v.
JOHN SALLEY, A/K/A BERNARD SALLEY, APPELLEE
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Florida appealed a downward departure sentence, arguing the trial court failed to provide written reasons as required by law. The Fourth District Court of Appeal affirmed the sentence, holding that the court's oral announcement of reasons combined with a signed status order satisfied the written requirement, and that the defendant should not be penalized for defense counsel's failure to prepare a formal written order.
The court affirmed, holding that the trial court's oral announcement of reasons combined with the signed court status order constituted sufficient written documentation to satisfy the requirement for written reasons for departure. Additionally, the defendant should not be penalized for defense counsel's failure to prepare and submit a formal written order when the trial court had exercised its sentencing discretion and delegated the ministerial task of order preparation.
[1] A court status form signed by the judge, containing the charges, notation of a "Barbera Plea," and the sentence imposed, can constitute a sufficient written reason for a…
[2] A trial court's oral announcement of reasons for a downward sentencing departure, incorporated into a signed status order, satisfies the requirement for a written reason.
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Join FLexlaw to unlock all legal intelligence“we are not required to cull through the record to search for the reasons supporting this departure... The trial court orally announced its reasons and included them in the status order containing the court's signature. We deem this a sufficient writing to satisfy Pope.”
Establishes that oral announcement combined with signed status order satisfies the written requirement for departure reasons
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Join FLexlaw to unlock all legal intelligenceJohn Salley received a downward departure sentence after entering a 'Barbera Plea.' The trial court orally announced reasons for the departure, intend…
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WARNER, Judge.
We affirm the downward departure of appellant’s sentence.
The State contends that there was no written reason for departure, but there is in the record a court status form which shows the charges, the notation of “Barbera Plea”, and the sentence imposed. It is signed by the judge. We have already held in State v. Martin, 551 So. 2d 600 (Fla. 4th DCA 1989) that “Barbera decision” written on the sentencing scoresheet in the space entitled “reasons for departure” was a sufficient writing without the necessity of separate order. Given the plea colloquy in this case which reinforces the trial court’s determination to downward depart in order to assure that this appellee would be put in a drug treatment program, we are not required to cull through the record to search for the reasons supporting this departure. See Pope v. State, 561 So. 2d 554 (Fla.1990).
The trial court orally announced its reasons and included them in the status order containing the court’s signature. We deem this a sufficient writing to satisfy Pope. See also Boynton v. State, 473 So. 2d 703 (Fla. 4th DCA 1985), approved, 478 So. 2d 351 (Fla.1985), cert. denied, 475 U.S. 1029, 106 S.Ct. 1232, 89 L.Ed.2d 341 (1986).
Even if we were to find the court status order insufficient, we would still affirm based on Smith v. State, 598 So. 2d 1063 (Fla.1992). In that case the trial court had orally announced its reasons for a downward departure and directed the State to note the reasons on the sentencing score- sheet. The State replied that the score-sheet had not been prepared but it agreed to prepare one and include the reason for departure.
However, the scoresheet ultimately prepared did not contain the reason for departure. The scoresheet was not approved by either the court or the defendant. On these facts, the supreme court held that because the trial court delegated the ministerial act of preparing the written order on the precise directions of the court, the defendant should not be penalized for the State’s failure to carry out the court’s instructions.
Thus, the court concluded that the district court had erred by reversing for resentencing within the guidelines pursuant to Pope.
A similar situation appears in the record here. After the trial court determined the downward departure, defense counsel told the court that she would have an appropriate order presented to the court that afternoon. No order is in the record, and there is no indication that one was submitted. Thus, just as in Smith, the trial court had exercised its discretion in sentencing and had delegated the ministerial act of preparation of the order. Appellant should not be penalized by defense counsel’s failure to follow through and prepare the order. Although it was appellant’s court appointed counsel who was neglectful rather than the state, we believe that Smith is still applicable.1
For the foregoing reasons we affirm.
AÑSTEAD and FARMER, JJ., concur. . Furthermore, if the failure of defense counsel to submit the written order would be the reason for reversing and remanding for a sentence within the guidelines, we could not think of a clearer case where ineffective assistance of counsel would be so apparent on the face of the record as to give relief on direct appeal rather than in collateral proceedings. See Stewart v. State, 420 So. 2d 862 (Fla.1982), cert. denied, 460 U.S. 1103, 103 S.Ct. 1802, 76 L.Ed.2d 366; Gregory v. State, 588 So. 2d 676 (Fla. 3d DCA 1991).
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Pease v. State, 712 So. 2d 374 (Fla. 1997)…replacing an earlier order lost or misfiled by the trial court clerk. Hence, the court held that an error made by the court clerk, rather than the court as involved herein, could be corrected by the entry of a subsequent order. In State v. Salley, 601 So. 2d 309 (Fla. 4th DCA 1992), the State appealed the imposition of a downward departure sentence on grounds that there were no written reasons for the trial court’s departure. ' Although recognizing that a written order had not been prepared to support the d…
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State v. Hunter, 606 So. 2d 499 (Fla. 4th DCA 1992)…reference to Barb-era. In such circumstances, it has been held that the state cannot subsequently claim that the trial court erred in deviating from the guidelines without written reasons. Smith v. State, 598 So. 2d 1063 (Fla.1992); State v. Salley, 601 So. 2d 309 (Fla. 4th DCA 1992). This case is a good example of the waste of appellate resources. Initially, the state’s representative at trial, being obviously aware of the trial court’s reason for departure (since he called it to the trial court’s attention…
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State v. Hunter, 610 So. 2d 115 (Fla. 4th DCA 1992)…ntil a week later. This court, and, more importantly, the Florida Supreme Court, have concluded under similar circumstances that a downward departure sentence should not be overturned. See Smith v. State, 598 So. 2d 1063 (Fla.1992); State v. Salley, 601 So. 2d 309 (Fla. 4th DCA 1992); State v. Hunter, 606 So. 2d 499 (Fla. 4th DCA 1992). The defendant was obviously relying on the trial court to enter the required order and he should not be penalized when the order is not timely filed. On the merits, the facts…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited (11 total)
- Pope v. State, 561 So. 2d 554 (Fla. 1990)
- Rhoda Smith v. State, 598 So. 2d 1063 (Fla. 1992)
- Stewart v. State, 420 So. 2d 862 (Fla. 1982)
- Boynton v. State, 473 So. 2d 703 (Fla. 4th DCA 1985)
- State v. Boynton, 478 So. 2d 351 (Fla. 1985)
- Stewart v. Florida, 460 U.S. 1103 (U.S. 1983)
- Ofarril v. United States, 475 U.S. 1029 (U.S. 1986)
- Barcena v. Washington, 475 U.S. 1029 (U.S. 1986)
- Gregory v. State, 588 So. 2d 676 (Fla. 3d DCA 1991)
- Elisco Meza v. State, 551 So. 2d 600 (Fla. 4th DCA 1989)