CYNTHIA WILCOX, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Cynthia Wilcox appealed her convictions for battery on a law enforcement officer and resisting an officer with violence. The court affirmed the convictions but reversed and remanded the sentences because the trial judge failed to comply with the procedural requirements for departure sentences under the new sentencing guidelines rule.
The court held that although oral articulation of reasons for departure is permitted, the new rule requires some form of written documentation signed by the judge and filed within fifteen days of sentencing. Because the trial judge failed to comply with these requirements, the departure sentences must be reversed and the case remanded for resentencing within the guidelines.
[1] A sentencing judge must orally articulate reasons for imposing a departure sentence from the recommended guidelines sentence.
[2] A departure sentence requires a written statement, signed by the sentencing judge, delineating the reasons for departure, filed within 15 days of sentencing.
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Join FLexlaw to unlock all legal intelligence“If a sentencing judge imposes a sentence that departs from the recommended guidelines sentence, the reasons for departure shall be orally articulated at the time sentence is imposed. Any departure sentence must be accompanied by a written statement, signed by the sentencing judge, delineating the reasons for departure.”
States the core procedural requirement for departure sentences under the new rule—oral articulation plus written statement signed by the judge.
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Join FLexlaw to unlock all legal intelligenceWilcox was convicted of battery on a law enforcement officer and resisting an officer with violence for crimes occurring on August 10, 1994. The trial…
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W. SHARP, Judge.
Wilcox appeals from judgments and sentences for battery on a law enforcement officer 1 and resisting an officer with violence.2 We affirm the convictions but reverse the two concurrent departure sentences of forty-eight months, which the trial judge imposed without following the directives of the most recent guidelines rule: Fla.R.Crim.P. 3.702(d)(18). That rule became effective January 1, 1994, and the crimes occurred on August 10,1994.
Rule 3.702(d)(18) provides:
(A) If a sentencing judge imposes a sentence that departs from the recommended guidelines sentence, the reasons for departure shall be orally articulated at the time sentence is imposed. Any departure sentence must be accompanied by a written statement, signed by the sentencing judge, delineating the reasons for departure. The written statement shall be filed in the court file within 15 days of the date of sentencing. A written transcription of orally stated reasons for departure articulated at the time sentence was imposed is sufficient if it is signed by the sentencing judge and filed in the court file within 15 days of the date of sentencing. The sentencing judge may also list the written reasons for departure in the space provided on the guidelines scoresheet and shall sign the scoresheet.
(B) The written statement delineating the reasons for departure shall be made a part of the record. The written statement, if it is a separate document, must accompany the guidelines scoresheet required to be provided to the Department of Corrections pursuant to subsection 921.0014(5).
While in this case the trial judge orally articulated reasons for imposing departure sentences at the sentencing hearing, he failed to comply with the balance of the new rule that requires that a written articulation (in some form) of the reasons for departure be signed by the trial judge and placed in the record, within fifteen days after the sentencing hearing. In this record there is no written statement of the reasons for departure; the transcript of the sentencing is of record but it is not signed by the trial judge, nor was it filed within fifteen days; and there are no reasons listed on the guidelines scoresheet signed by the trial judge.
This new rule relaxes the former strict requirements of Ree v. State, 565 So. 2d 1329 (Fla.1990) that written reasons for imposing a departure sentence must be filed virtually simultaneously with the oral pronouncement of sentence, and that a transcript of the trial judge’s oral explanation of reasons for imposing a departure sentence is insufficient.3 However, it does require some form of writing, and the judge’s signature, and a timely filing. Once the new rule is made known to sentencing judges, it should prove far easier to comply with than Ree, and appellate courts will have less need to reverse departure sentences.
Because of the sentencing problems discussed above in this case, we have no choice but to reverse the departure sentences and remand for re-sentencing within the guidelines. Pope v. State, 561 So. 2d 554 (Fla. 1990).
Convictions AFFIRMED; Sentences VACATED; REMANDED for Resentencing.
PETERSON, C.J., and THOMPSON, J., concur. . § 784.03, Fla.Stat. (1993); § 784.07, Fla.Stat. (Supp.1994).
. § 843.01, Fla.Stat. (1993).
. See Amendments to Fla.R.Crim.P. re Sentencing Guidelines, 628 So. 2d 1084 (Fla.1993).
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Carridine v. State, 721 So. 2d 818 (Fla. 4th DCA 1998)…912913, 23 Fla. L. Weekly D39 (Fla. 2d DCA Dec. 19,1997) (reversal of upward departure sentence because the written transcript of the trial court’s oral statement of its reasons for departure did not contain the court’s signature); Wilcox v. State, 664 So. 2d 55, 56 (Fla. 5th DCA 1995) (Rule 3.702(d)(18) “require(s) some form of writing, and the judge’s signature, and a timely filing.”). Nunc pro tunc orders are issued to correct clerical mistakes or memorialize a previously taken judicial act. D.M. v. Stat…
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Beck v. State, 817 So. 2d 858 (Fla. 5th DCA 2002)…ard departure sentence within seven days of sentencing. § 921.0016(1)(c), Fla. Stat. (2001); State v. West, 718 So. 2d 266, 267 (Fla. 5th DCA 1998) (“Timely written reasons for departure sentences, upward or downward are required”); Wilcox v. State, 664 So. 2d 55 (Fla. 5th DCA 1995). Here, the trial court failed to enter its written reasons for its upward departure at the time of imposing the defendant’s sentence. When the trial court revisited the sentence via defendant’s Rule 3.800(b) motion, the court re…
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Guelmer J. Escobar v. State, 189 So. 3d 1029 (Fla. 4th DCA 2016)…is added); see also Watts v. State, 688 So. 2d 1018, 1018-19 (Fla. 4th DCA 1997). In short, due process requires it. ’ . This case does not involve a departure sentence and is not controlled by Fla. R. of Crim. P. 3.702(d)(18). See Wilcox v. State, 664 So. 2d 55 (Fla. 5th DCA 1995) (applying rule requiring written reasons for departure sentence to be filed within 15 days of sentence). See also Domberg v. State, 661 So. 2d 285 (Fla.1995) (addressing trial court's jurisdiction when departure sentence is invol…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Pope v. State, 561 So. 2d 554 (Fla. 1990)
- REE v. State, 565 So. 2d 1329 (Fla. 1990)
- Amendments to Florida Rules of Criminal Procedure re Sentencing Guidelines, 628 So. 2d 1084 (Fla. 1993)