LEONARDO MORALES, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Leonardo Morales appealed his departure sentence imposed in 1986. The Florida Supreme Court's decision in Ree v. State created confusion about retroactive application, leading to multiple appeals and reversals. The Third District Court ultimately reversed and remanded for resentencing within the guidelines, applying Ree retroactively to cases in the pipeline.
Ree v. State should be applied retroactively to cases in the pipeline when Ree was issued. The departure sentence is reversed and the case is remanded for resentencing within the guidelines. The trial court's scoring of victim injury points was incorrect under Karchesky v. State, and the sentencing rules as they existed at the time of the offense apply.
[1] A departure sentence is invalid if the written order is not filed on the date of sentencing.
[2] The Supreme Court's ruling in Ree v. …
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Join FLexlaw to unlock all legal intelligence“Because the written departure order had not been entered on the date of sentencing, this court held that Ree controlled.”
Explains the initial application of Ree v. State based on the timing of the written order
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Join FLexlaw to unlock all legal intelligenceMorales was sentenced to a departure sentence in April 1986, but the written sentencing order was filed seven days after sentencing due to clerical er…
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PER CURIAM.
The defendant appeals the trial court’s imposition of a departure sentence. We reverse.
The trial court initially sentenced the defendant in April, 1986. The court imposed a departure sentence and prepared a written order. However, the written order was filed seven days after the sentencing.
Due to clerical error, an appeal was not timely commenced. A belated appeal was later allowed. In the meantime the Florida Supreme Court announced Ree v. State, 565 So. 2d 1329 (Fla.1990). Because the written departure order had not been entered on the date of sentencing, this court held that Ree controlled. The sentencing order was reversed and remanded for resentencing within the guidelines. Morales v. State, 563 So. 2d 211 (Fla. 3d DCA 1990) (Morales I).
Shortly after we issued Morales I, the supreme court clarified Ree and held that Ree was not to be applied retroactively. Ree, 565 So. 2d at 1331. The trial court followed Ree as clarified, and again imposed a departure sentence. This court denied defendant’s motion to enforce mandate, invoked the manifest injustice exception to the law of the case doctrine, and withdrew the Morales I opinion. Morales v. State, 580 So. 2d 788 (Fla. 3d DCA 1991) (Morales II).
After conclusion of proceedings in the trial court, Morales appealed. In the meantime the supreme court receded from so much of Ree as indicated that Ree would be given prospective application only. The supreme court ruled that Ree should be given retroactive application in cases which were in the "pipeline” when Ree was issued. Smith v. State, 598 So. 2d 1063, 1066 (Fla.1992). We therefore reinstate Morales I, reverse the sentencing order, and remand the case for resentencing within the guidelines.1
The trial court incorrectly scored victim injury points in this case. The supreme court’s opinion in Karchesky v. State, 591 So. 2d 930 (Fla.1992) is applicable. The legislature’s recent amendments to section 921.001, Florida Statutes (Supp. 1992), which took effect April 8, 1992, see ch. 92-135, § 4, do not apply to this case. The rule must be applied as it existed at the time of the offense. See Madrey v. State, 594 So. 2d 841 (Fla. 5th DCA 1992).
Reversed and remanded for resentencing within the guidelines.
SCHWARTZ, C.J., and HUBBART, J„ concur. .The State and the defendant agree that the new scoresheet should reflect the defendant’s other convictions which were not factored into the original scoresheet.
COPE, Judge,
Specially Concurring.
In my view the legislature should abolish the requirement that written departure reasons be entered on the date of sentencing.1
Where there is a valid reason for a departure sentence, those reasons do not lose their force because the written order is entered on a date after sentencing instead of on the day of sentencing,2 or because the reasons are stated on the record instead of being reduced to a written order.3 Sentencing review should concentrate on the merits of departure orders, not the form in which the departure reasons have been given. As is true in habitual offender sentencing (which upward departure sentences resemble), it should be sufficient to state the departure reasons on the record, with preparation of a written departure order an optional alternative.
Departure sentences by definition deal with defendants who merit unusually severe, or unusually lenient, sentences. The important question is whether the judge’s stated reasons justify, or do not justify, a departure sentence under existing legal standards. It is unwise policy to undo a departure sentence for a matter of form, rather than substance.
. See § 921.001(6), Fla.Stat. (1991).
. See id.; Ree v. State, 565 So. 2d 1329 (Fla. 1990).
. See § 921.001(6), Fla.Stat. (1991); Pope v. State, 561 So. 2d 554 (Fla.1990).
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Harrelson v. State, 616 So. 2d 128 (Fla. 2d DCA 1993)…2d 511, 513 (Fla. 2d DCA 1992). The trial court also noted that the legislature has effectively overruled the Karchesky decision. Ch. 92-135, § 1, Laws of Fla. While this is so, the amended statute cannot be applied in, this case. Morales v. State, 613 So. 2d 922 (Fla. 3d DCA 1993); Boland v. State, 613 So. 2d 72 (Fla. 4th DCA 1993) (Warner, J., concurring). After remand the trial court may again deny the motion if, after review of the files and records or an evidentiary hearing, it is established that actu…
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Singleton v. State, 620 So. 2d 1038 (Fla. 2d DCA 1993)…o section 921.001, Florida Statutes (Supp. 1992),1 mandates affirmance because it went into effect on April 8, 1992 — the date of Singleton’s sentencing. One court has [*1040] held that the amendment is to be applied prospectively, Morales v. State, 613 So. 2d 922 (Fla. 3d DCA 1993), and we also subscribe to the view that the applicable rule is the one which existed at the time of the offense, not sentencing. The reduction of Singleton’s sentencing score by the number of victim injury points would result in…
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Royce Glenn Harper v. State, 632 So. 2d 104 (Fla. 1st DCA 1994)…, review denied, 624 So. 2d 268 (Fla.1993); Roux v. State, 615 So. 2d 879 (Fla. 2d DCA), review denied, 624 So. 2d 268 (Fla.1993); Jones v. State, 615 So. 2d 705 (Fla. 2d DCA 1992); Lane v. State, 613 So. 2d 932 (Fla. 2d DCA 1993); Morales v. State, 613 So. 2d 922 (Fla. 3d DCA), revieiv denied, 623 So. 2d 494 (Fla.1993); Boland v. State 613 So. 2d 72 (Fla. 4th DCA), review denied, 624 So. 2d 268 (Fla.1993); State v. Stone, 608 So. 2d 941 (Fla. 2d DCA 1992); Wallen v. State, 606 So. 2d 399 (Fla. 5th DCA 1992);…
Previewing 3 of 10 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)
- REE v. State, 565 So. 2d 1329 (Fla. 1990)
- Rhoda Smith v. State, 598 So. 2d 1063 (Fla. 1992)
- Karchesky v. State, 591 So. 2d 930 (Fla. 1992)
- Madrey v. State, 594 So. 2d 841 (Fla. 5th DCA 1992)
- Morales v. State, 580 So. 2d 788 (Fla. 3d DCA 1991)
- Morales v. State, 563 So. 2d 211 (Fla. 3d DCA 1990)
- Lindeman v. State, 563 So. 2d 211 (Fla. 3d DCA 1990)