PAUL NELSON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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JOANOS, Judge.
Appellant, Paul Nelson, appeals the 12-year sentence imposed upon the revocation of the probation he was serving in connection with a conviction of armed robbery. The sentence imposed by the trial court exceeds the one-cell increase permitted by Florida Rule of Criminal Procedure 3.701(d)14, and no reasons were provided in support of the departure sentence. Therefore, we must re verse the sentence and remand for re-sentencing. See Williams v. State, 594 So. 2d 273,275 (Fla.1992); Smith v. State, 608 So. 2d 567 (Fla. 1st DCA 1992). Since the record indicates the trial court was not aware that a departure sentence had been imposed, upon remand, the court may consider whether a departure sentence is appropriate in this case, and if so, to set forth valid reasons for the departure. State v. Betancourt, 552 So. 2d 1107, 1108 (Fla.1989); Smith v. State, 639 So. 2d 160, 161 (Fla. 1st DCA 1994).
Accordingly, this cause is reversed and remanded for resentencing.
LAWRENCE, J., concurs.
BENTON, J., concurs with opinion.
BENTON, Judge,
concurring.
At least since the decision in Pope v. State, 561 So. 2d 554 (Fla.1990), our supreme court has adhered to the view that when an appellate court reverses a departure sentence because there were no written reasons, the court must remand for resentencing with no possibility of departure from the guidelines.
Pope, 561 So. 2d at 556. Inasmuch as the decision in State v. Betancourt, 552 So. 2d 1107 (Fla.1989) antedates Pope, the continued viability of Betancourt is not beyond question, despite our decision in Smith v. State, 639 So. 2d 160,161 (Fla. 1st DCA 1994) and numerous other district court decisions to like effect. See generally Hoffman v. Jones, 280 So. 2d 431 (Fla.1973).
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Green v. State, 696 So. 2d 488 (Fla. 3d DCA 1997)…court was aware it was imposing departure sentences as to these 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 s…
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State v. Hughes, 677 So. 2d 852 (Fla. 1st DCA 1995)…icates that the trial court was not aware that a departure sentence had been imposed, the court may consider whether a departure sentence is appropriate on remand, and if so, the court must set forth valid reasons for the departure. Nelson v. State, 650 So. 2d 1085 (Fla. 1st DCA 1995). Accordingly, this cause is reversed and remanded for resentencing. MINER, WOLF and VAN NORTWICK, JJ., concur.…
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Douglas v. State, 661 So. 2d 853 (Fla. 5th DCA 1995)…the plea. Given that the date of the offense was in 1994, the guidelines score maximum is 37.26, which is below 40 so the court could not give prison time. Because the sentence was 30 months in the state prison it was excessive. See Nelson v. State, 650 So. 2d 1085 (Fla. 1st DCA 1995); Hause v. State, 643 So. 2d 679 (Fla. 4th DCA 1994). SENTENCE VACATED; REMANDED. HARRIS and ANTOON, JJ., concur.…
Authorities Cited
- Hoffman v. Jones, 280 So. 2d 431 (Fla. 1973)
- Pope v. State, 561 So. 2d 554 (Fla. 1990)
- State v. Betancourt, 552 So. 2d 1107 (Fla. 1989)
- Williams v. State, 594 So. 2d 273 (Fla. 1992)
- Smith v. State, 608 So. 2d 567 (Fla. 1st DCA 1992)
- Buster Lee Smith v. State, 639 So. 2d 160 (Fla. 1st DCA 1994)