STATE OF FLORIDA, APPELLANT,
v.
JAMES TAVOLACCIO, APPELLEE
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Florida appeals a trial court's sentencing of a habitual felony offender to community control and probation, which departed downward from sentencing guidelines. The appellate court reverses because the trial court imposed a downward departure without stating written reasons as required by law.
A trial court that chooses not to impose an enhanced habitual offender sentence must either sentence within the guidelines or state appropriate written reasons for any downward departure. The failure to provide such reasons constitutes reversible error.
[1] A trial court must provide written reasons for a downward departure from sentencing guidelines when not imposing an enhanced sentence under the habitual offender statute.
[2] Once a defendant is declared a habitual offender, the trial court may either impose a sentence under the habitual offender statute or elect not to impose an enhanced sent…
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Join FLexlaw to unlock all legal intelligence“The court may impose a habitual offender sentence under section 775.084, Florida Statutes, or the court may exercise its discretion not to impose an enhanced sentence and sentence without regard to the habitual offender statute. If the court chooses not to impose a habitual offender sentence, it must adhere to the sentencing guidelines requirements, including written reasons for departure from the guidelines.”
Establishes the two sentencing options available once a defendant is found to be a habitual offender and the mandatory requirement for written reasons if departing from guidelines.
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Join FLexlaw to unlock all legal intelligenceJames Tavolaccio was adjudicated a habitual felony offender for robbery (a second-degree felony). At sentencing, Tavolaccio and his brother addressed …
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QUINCE, Judge.
The state challenges an order of the trial court sentencing James Tavolaccio, a habitual felony offender, to two years’ community control followed by eight years’ drug offender probation. We reverse because the sentence imposed is a downward departure from the guidelines without written reasons.
The state requested and the court found appellant a habitual felony offender in circuit court case number 93-8886. This court held in King v. State, 597 So. 2d 309 (Fla. 2d DCA), review denied, 602 So. 2d 942 (Fla.1992), that a trial court has two options in sentencing once a defendant has been declared a habitual offender. See also McKnight v. State, 616 So. 2d 31 (Fla.1993). The court may impose a habitual offender sentence under section 775.084, Florida Statutes, or the court may exercise its discretion not to impose an enhanced sentence and sentence without regard to the habitual offender statute. If the court chooses not to impose a habitual offender sentence, it must adhere to the sentencing guidelines requirements, including written reasons for departure from the guidelines. King, 597 So. 2d at 315.
Under the habitual offender statute, appellant could have received a sentence of up to thirty years’ imprisonment for the second degree felony of robbery. The guidelines provided for a recommended sentence of life with a permitted sentence of twenty-seven years to life. At the sentencing hearing, appellant and his brother addressed the court concerning appellant’s drug problem and requested leniency because of this problem. The trial court thereafter imposed a sentence of two years’ community control followed by eight years’ drug offender probation. The court did not state any reasons for imposing a sentence which was both outside the habitual offender statute and a departure from the guidelines range.1 By failing to state reasons for the departure, the trial court erred.
As the court observed in Geohagen v. State, 639 So. 2d 611 (Fla.1994), by virtue of the sentence imposed, the trial court necessarily determined a habitual offender sentence was not necessary. Once that decision was made, the court had to either sentence under the guidelines or state appropriate reasons for any downward departure from the guidelines. The record does not contain any oral pronouncement of reasons, any sentencing guidelines scoresheet stating reasons, nor any separate sentencing order outlining reasons.
We are satisfied from the judge’s statement to the defendant at the conclusion of the sentencing hearing that he could have been sentenced to life under the guidelines or seventy years as a habitual offender, and that the judge was aware that he was imposing a departure sentence. Nonetheless, he failed to state the reasons for the departure.
We, therefore, reverse the sentence imposed and remand to the trial court for re-sentencing within the guidelines.
RYDER, A.C.J., and BLUE, J., concur. . Although the trial judge ordered drug treatment as a part of both the community control and probation, he did not make any findings as required under Herrin v. State, 568 So. 2d 920 (Fla. 1990).
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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State v. Theodis Hardnett White, 693 So. 2d 54 (Fla. 4th DCA 1997)…l judge knew he was departing from the guidelines but failed to provide reasons for the departure, we remand to the trial court for resentencing within the guidelines. See Nelson v. State, 674 So. 2d 888, 889 (Fla. 2d DCA 1996); State v. Tavolaccio, 657 So. 2d 1226, 1227 (Fla. 2d DCA 1995). REVERSED AND REMANDED. GUNTHER, C.J., and FARMER and KLEIN, JJ., concur.…
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Nelson v. State, 674 So. 2d 888 (Fla. 2d DCA 1996)…cause the trial court imposed a downward departure sentence without providing written reasons. When a defendant is sentenced to a downward departure sentence, the trial court must provide written reasons for the departure. See State v. Tavolaccio, 657 So. 2d 1226 (Fla. 2d DCA 1995). Here, the trial court knew that it was departing from the guidelines but failed to provide reasons for the departure. Consequently, we reverse Nelson’s sentence and remand to the trial court for resentencing within the guidelines…
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State v. Cosentino, 679 So. 2d 333 (Fla. 2d DCA 1996)…departure). See also State v. Tillman, 636 So. 2d 837 (Fla. 2d DCA 1994). When, as in this case, the trial court fails to provide written reasons for departure, the case must be remanded for resentencing within the guidelines. State v. Tavolaccio, 657 So. 2d 1226 (Fla. 2d DCA 1995). Therefore, we reverse and remand for resentencing within the guidelines. ALTENBERND, A.C.J., and LAZZARA and QUINCE, JJ., concur.…
Authorities Cited
- King v. State, 597 So. 2d 309 (Fla. 2d DCA 1992)
- Herrin v. State, 568 So. 2d 920 (Fla. 1990)
- Geohagen v. State, 639 So. 2d 611 (Fla. 1994)
- McKNIGHT v. State, 616 So. 2d 31 (Fla. 1993)
- THE Florida BAR v. Neckman, 616 So. 2d 31 (Fla. 1993)