KENNETH WRIGHT, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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The appellate court affirmed a defendant's conviction but vacated his sentence due to an improper departure sentence. The court applied a Supreme Court ruling on the retroactivity of sentencing rules, requiring resentencing within the guidelines.
The court held that the conviction should be affirmed as the Supreme Court's ruling on peremptory challenges resolved that issue. However, the departure sentence was invalid because the trial court failed to provide contemporaneous written reasons as required by a retroactive sentencing rule.
[1] A trial court's disallowance of a peremptory challenge may be affirmed on remand following a supreme court decision clarifying the relevant legal standard.
[2] A conviction will be affirmed when the appellate court finds no error in the trial court's rulings that were the basis for a prior reversal.
Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“that any decision of this Court announcing a new rule of law, or merely applying an established rule of law to a new or different factual situation, must be given retrospective application by the courts of this state in every case pending on direct review or not yet final.”
This quote establishes the Supreme Court's rule on the retroactivity of new legal rules, which the appellate court applied to the sentencing issue.
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Join FLexlaw to unlock all legal intelligenceThe defendant was convicted of driving under the influence and driving with a suspended license. The appellate court had previously ordered a new tria…
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PER CURIAM.
This case is before us on remand from the Supreme Court of Florida for further consideration of State v. Wright, 600 So. 2d 457 (Fla.1992), which quashed this court’s decision in Wright v. State, 592 So. 2d 1123 (Fla. 3d DCA 1991). The original opinion ordered that defendant Kenneth Wright was entitled to a new trial. Following statements made in State v. Wright, 600 So. 2d 457 (Fla.1992), we find no error occurred in the trial court’s disallowance of Wright’s peremptory challenge which was the basis upon which we had previously ordered Wright be granted a new trial. See Jefferson v. State, 595 So. 2d 38 (Fla.1992).
Accordingly, we affirm defendant Wright’s conviction on four counts of driving under the influence, § 316.193(3), Fla. Stat. (1989), and on one count of driving with a suspended license, § 322.34(3), Fla. Stat. (1989).
We do, however, find error in the departure sentence ordered and vacate Wright’s sentence and remand on that basis. In Smith v. State, 598 So. 2d 1063 (Fla.1992), the Court concluded, as a uniform rule of retroactivity, “that any decision of this Court announcing a new rule of law, or merely applying an established rule of law to a new or different factual situation, must be given retrospective application by the courts of this state in every case pending on direct review or not yet final.” Id. at 214.
With specific regard to the requirement of Ree v. State, 565 So. 2d 1329 (Fla.1990), that any reasons for a departure sentence must be given by the trial judge contemporaneous to sentencing, the court held “that Ree shall apply to all cases not yet final when mandate issued after rehearing in Ree.” Smith, at 1066.
We conclude that the instant case falls within the class of cases to which Ree now applies and in which the failure to enter a contemporaneous order requires sentencing within the guidelines range.
Accordingly, we vacate the departure sentence imposed and remand with instructions to resentence Wright within the presumptive guidelines range.
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Webb v. State, 609 So. 2d 728 (Fla. 5th DCA 1992)…o. 2d 1063 (Fla.1992), which also considered the effect of retroactive application of supreme court decisions and that the Third District Court of Appeal has given Fenelon retrospective application but has also found harmless error. Wright v. State, 603 So. 2d 624 (Fla. 3d DCA 1992); Bryant v. State, 602 So. 2d 966 (Fla. 3d DCA 1992); Sanchez-Basulto v. State, 601 So. 2d 1263 (Fla. 3d DCA 1992). We hold that the retrospective application of Fenelon is unnecessary to a decision here because under the facts in…
Authorities Cited
- REE v. State, 565 So. 2d 1329 (Fla. 1990)
- Rhoda Smith v. State, 598 So. 2d 1063 (Fla. 1992)
- State v. Wright, 600 So. 2d 457 (Fla. 1992)
- THE Florida BAR v. MacMILLAN, 600 So. 2d 457 (Fla. 1992)
- Jefferson v. State, 595 So. 2d 38 (Fla. 1992)
- Tillery v. State, 592 So. 2d 1123 (Fla. 1st DCA 1991)
- Wright v. State, 592 So. 2d 1123 (Fla. 3d DCA 1991)