JOHNNY TARVER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that the trial court erred in summarily denying postconviction relief on claims of ineffective assistance of counsel and improper sentencing.
[1] A trial court must provide contemporaneous written reasons for a departure from sentencing guidelines.
[2] A defendant is entitled to resentencing within the guidelines if the trial court fails to enter contemporaneous written reasons for a departure sentence.
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Join FLexlaw to unlock all legal intelligenceJohnny Tarver appealed the summary denial of his motion for postconviction relief, alleging ineffective assistance of counsel and that his sentence de…
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[*637] PER CURIAM.
Johnny Tarver appeals from the summary denial of his motion for posteonviction relief. Tarver raised two claims in his motion, both of which warrant relief. Therefore, we reverse and remand for action consistent with this opinion.
First, Tarver claimed his trial attorney was ineffective for refusing his request to testify in his own behalf at trial. Since the order denying relief is unaccompanied by any supporting documentation, we are unable to determine whether relief was properly denied on this point. On remand, unless the case files and records conclusively show Tar-ver is not entitled to relief, the trial court shall order the state to file an answer. Thereafter, the trial court shall determine whether an evidentiary hearing is required. If the trial court summarily denies relief, it shall attach to its order those portions of the record conclusively refuting Tarver’s claim. See, e.g., LaTulip v. State, 645 So. 2d 552 (Fla. 2d DCA 1994); Gill v. State, 632 So. 2d 660 (Fla. 2d DCA 1994).
Tarver is also entitled to relief on his second point — namely, that because the trial court failed to enter contemporaneous written reasons for departure he must be resen-teneed within the guidelines. Tarver’s sentencing occurred on February 5, 1990, but the “Explanation of Departure from Sentencing Guidelines” was not rendered until eight days later on February 13,1990. Therefore, since Tarver’s direct appeal was not yet final when the Florida Supreme Court issued its mandate in Ree v. State, 565 So. 2d 1329 (Fla.1990), which was later held to apply retroactively in Smith v. State, 598 So. 2d 1063 (Fla.1992), and which was recently discussed at length in State v. Brown, 655 So. 2d 82 (Fla.1995), Ree applies to Tarver’s sentence. Accordingly, the order denying Tar-ver’s motion for postconviction relief is reversed and remanded.
Under no circumstance, whether Tarver ultimately receives relief on his first point or not, shall Tarver be resentenced to anything but a guidelines sentence.
Reversed and remanded.
THREADGILL, C.J., and DANAHY and FULMER, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- REE v. State, 565 So. 2d 1329 (Fla. 1990)
- Rhoda Smith v. State, 598 So. 2d 1063 (Fla. 1992)
- Gill v. State, 632 So. 2d 660 (Fla. 2d DCA 1994)
- State v. Brown, 655 So. 2d 82 (Fla. 1995)
- Steffa v. State, 645 So. 2d 552 (Fla. 2d DCA 1994)
- LaTULIP v. State, 645 So. 2d 552 (Fla. 2d DCA 1994)