MOSES MCGOWAN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Moses McGowan appealed his conviction for possession of cocaine, contesting the denial of his motions for judgment of acquittal and suppression. The appellate court affirmed the conviction but vacated and remanded the sentence because the trial court imposed a departure sentence without written reasons as required by law, and reversed the imposition of court costs that were imposed without notice or opportunity to be heard.
The trial court did not err in denying the motions for judgment of acquittal and suppression. However, the departure sentence must be vacated and remanded because no written reasons were provided. On remand, the trial court must either impose a guideline sentence or provide valid written reasons for departure. The assessment of discretionary court costs must be struck for failing to afford notice and opportunity to be heard.
[1] A trial court's failure to provide written reasons for a departure sentence requires vacation of the sentence and remand for resentencing.
[2] Upon remand for resentencing due to lack of written reasons for a departure sentence, if the trial court was unaware it was imposing a departure sentence, it must be allo…
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Join FLexlaw to unlock all legal intelligence“Because the trial court entered the departure sentence without written reason given, we vacate the sentence and remand for resentencing.”
Establishes the requirement that departure sentences must be accompanied by written reasons under Florida law.
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Join FLexlaw to unlock all legal intelligenceMcGowan was charged with and found guilty of possession of cocaine, a third-degree felony. The trial court sentenced him to 364 days county jail time …
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[*1226] PER CURIAM.
Appellant was charged with and found guilty of one count of possession of cocaine, a third-degree felony, and judgment entered accordingly. Relative to his conviction, appellant asserts that the court erred in denying his motions for judgment of acquittal and his motion to suppress. We conclude that the court did not err as to these matters and affirm the judgment.
Under sentencing guidelines, both the recommended sentence and the permitted sentence called for any nonstate sanction. Appellant was sentenced to 364 days county jail time, with credit for time served, followed by one year community control, followed by two years probation. This was a departure sentence for which written reasons must be given. State v. Davis, 630 So. 2d 1059 (Fla.1994); State v. VanKooten, 522 So. 2d 830 (Fla.1988). Because the trial court entered the departure sentence without written reason given, we vacate the sentence and remand for resentencing.
When a departure sentence is vacated due to the trial court’s failure to give reasons in writing as required by law, the sentencing prerogatives upon remand depend upon whether the record indicates the trial court was aware it was imposing a departure sentence. If so, the remand is for resentencing within the guidelines. Pope v. State, 561 So. 2d 554 (Fla.1990). If not, upon remand the trial court must be allowed to consider whether departure is appropriate and, if so, to set forth valid written reasons for departure. State v. Betancourt, 552 So. 2d 1107 (Fla.1989). Because the record does not reflect that the trial court considered the sentence in this case to be a departure from the sentencing guidelines, we remand for the trial court to impose a guideline sentence or, upon valid reasons given in writing, a departure sentence. See Williams v. State, 591 So. 2d 295 (Fla. 4th DCA 1991).
The written judgment adjudicating appellant guilty of the offense of possession of cocaine was entered January 13, 1994, and waived the $200 trust fund cost pursuant to section 27.3455, Florida Statutes, the $50 crimes compensation trust fund cost pursuant to section 960.20, Florida Statutes, and the $5 court costs pursuant to section 943.25(4), Florida Statutes. At sentencing on February 11,1994, the court did not verbally impose any costs, but in the written sentence assessed the $200 trust fund cost (waived in the judgment) and assessed $720 in discretionary court costs. The posture of this case is virtually identical to that found in Williams v. State, 591 So. 2d 295 (Fla. 4th DCA 1991), where we held the trial court, in assessing $720 for discretionary court costs, erred in failing (as here) to afford the defendant adequate notice and an opportunity to be heard on the matter of costs as required by Jenkins v. State, 444 So. 2d 947 (Fla.1984), and also erred in failing (as here) to orally pronounce the imposition of those discretionary costs upon the defendant at the sentencing hearing. On the authority' of the Williams case the trial court is directed, upon remand, to strike the imposition of these discretionary costs as well as the imposition of the statutory costs which therefore had been waived in the written judgment.
AFFIRMED IN PART, REVERSED IN PART AND REMANDED. '
FARMER and STEVENSON, JJ., and OWEN, WILLIAM C., Jr., Senior Judge, concur.
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State v. Lamarion Maurice Solomon, 667 So. 2d 937 (Fla. 2d DCA 1996)…2d DCA 1994). When the record reflects that the trial court was aware it was imposing a departure sentence and failed to provide written reasons for the departure, on remand the trial court must resentence within the guidelines. McGowan v. State, 648 So. 2d 1225 (Fla. 4th DCA 1995). From a review of the trial court’s statements at sentencing, we conclude that the trial court knew it was imposing a downward-departure sentence. Accordingly, on remand, the trial court must sentence Solomon within the sentencin…
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Green v. State, 696 So. 2d 488 (Fla. 3d DCA 1997)…ese convictions, on remand the court may consider whether departure sentences are appropriate and, if so, it should set forth valid written reasons for the departures. See Nelson v. State, 650 So. 2d 1085, 1086 (Fla. 1st DCA 1995); McGowan v. State, 648 So. 2d 1225, 1226 (Fla. 4th DCA 1995). In sum, we find the points raised by Green with respect to his judgment of conviction to be without merit and affirm it on all counts. Further, we affirm the sentence imposed for the first degree murder with a firearm. L…
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State v. Marsh, 687 So. 2d 366 (Fla. 4th DCA 1997)…he record whether the trial court was aware that it was imposing a departure sentence. Accordingly, on remand, the trial court will not be precluded from imposing a departure sentence so long as valid written reasons are set forth. McGowan v. State, 648 So. 2d 1225 (Fla. 4th DCA 1995). DELL, FARMER and KLEIN, JJ., concur.…
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
- Jenkins v. State, 444 So. 2d 947 (Fla. 1984)
- Pope v. State, 561 So. 2d 554 (Fla. 1990)
- State v. Betancourt, 552 So. 2d 1107 (Fla. 1989)
- State v. Davis, 630 So. 2d 1059 (Fla. 1994)
- State v. VanKOOTEN, 522 So. 2d 830 (Fla. 1988)
- State v. Bodine, 522 So. 2d 830 (Fla. 1988)
- Williams v. State, 591 So. 2d 295 (Fla. 4th DCA 1991)