DENNIS COHEN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Statutory and rule amendments regarding sentencing do not apply retroactively to offenses committed before their effective date. The court certifies a question regarding reversible error for delayed written sentencing reasons.
The defendant committed crimes prior to January 1, 1994. The trial court orally pronounced departure reasons at sentencing but reduced them to writing…
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GRIFFIN, Judge.
We affirm the defendant’s convictions for attempted first degree murder with a firearm, burglary of a structure while armed, two counts of robbery with a firearm, three counts of aggravated assault with a firearm, two counts of grand theft auto, evidence tampering, and arson. We are bound, however, to vacate the departure sentences of life imprisonment imposed by the lower court.1 The supreme court has clearly and repeatedly announced that guidelines departure orders must be filed contemporaneously with the announced departure sentence. Blair ¶. State, 598 So. 2d 1068 (Fla.1992); State v. Lyles, 576 So. 2d 706 (Fla.1991); Ree v. State, 565 So. 2d 1329 (Fla.1990). The departure order in this case shows that it was prepared and filed ten days later, which plainly violates the supreme court’s requirement. For this reason, we vacate the departure sentences and remand to the lower court to resentenee defendant within the guidelines.
AFFIRMED in part; and REMANDED.
PETERSON and THOMPSON, JJ„ concur. . The maximum permitted sentence under the guidelines is nine years' imprisonment.
We find no merit in appellee’s argument on rehearing that the 1994 statutory and rule amendments found in section 921.0016, Florida Statutes, and Rule 3.702, Florida Rules of Criminal Procedure, apply to this case. Cohen’s crimes were committed prior to January 1, 1994; the amendments apply to offenses committed after that date.
As to the state’s request that we certify the same question certified in Colbert v. State, 646 So. 2d 234 (Fla. 5th DCA 1994), review granted, — So. 2d-, No. 85,047 (Fla. May 5, 1995), it does not appear that the reasoning that motivated the Colbert certification would also apply in this case. The distinction between the five business day delay in Colbert and the eight business day delay in this case is not material. To be consistent, therefore, we certify to the supreme court the question whether:
In light of the court’s recognition in Harris v. State, [645 So. 2d 386 (Fla.1994)], that sentencing is not a game in which one wrong move by the judge means immunity for the prisoner, is it still per se reversible error where a trial court orally pronounces departure reasons at sentencing but does not reduce them to writing until eight business days later?
PETERSON, C.J., and THOMPSON, J., concur.
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Capers v. State, 670 So. 2d 967 (Fla. 1st DCA 1995)…on or after January 2, 1994. In Case No. 94-218, the offense was alleged to have taken place "on or about October 1, 1993 to April 15, 1994.” The 1994 sentencing guidelines do not apply to offenses committed prior to January 1, 1994. Cohen v. State, 656 So. 2d 525 (Fla. 5th DCA 1995); ch. 93-406, § 13 at 2941, Laws of Fla. See generally Ivey v. Chiles, 604 So. 2d 542 (Fla. 1st DCA 1992) (treating continuing offense as occurring on first date charged). . The age of the victim is an element of both the crime o…
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Cohen v. State, 688 So. 2d 994 (Fla. 5th DCA 1997)…PER CURIAM. Appellant seeks review of his sentence after this court reversed a departure sentence of life imprisonment and remanded for re-sentencing within the guidelines. Cohen v. State, 656 So. 2d 525 (Fla. 5th DCA 1995), review denied, 666 So. 2d 901 (Fla.1996).1 We find no error in the imposition of a minimum mandatory sentence for armed burglary based on the verdict finding him guilty of that offense “as charged in the information.” State v. T…
Authorities Cited
- REE v. State, 565 So. 2d 1329 (Fla. 1990)
- State v. Lyles, 576 So. 2d 706 (Fla. 1991)
- Harris v. State, 645 So. 2d 386 (Fla. 1994)
- Vasten E. Blair v. State, 598 So. 2d 1068 (Fla. 1992)
- Colbert v. State, 646 So. 2d 234 (Fla. 5th DCA 1994)