LEWIS JEROME CHERUBIN, JR., APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Cherubin appealed his convictions for aggravated assault of a law enforcement officer and carrying a concealed firearm, challenging his sentence and probation conditions. The appellate court affirmed the convictions but remanded for resentencing because the 58-month sentence exceeded the guidelines without written reasons, and certain probation conditions and fines were improperly imposed without oral pronouncement.
The court affirmed the convictions but remanded for resentencing. The 58-month sentence was an improper departure from the guidelines without written reasons. Certain special probation conditions (portions of conditions 3 and 8) and certain fines/fees ($33.00 cost/fine, $2.00 under section 943.25(13), and the $300.00 attorney fee) were stricken as not having been orally pronounced, with the attorney fee remaining subject to reimposition after notice.
[1] A departure sentence imposed without written reasons is invalid.
[2] Defendants are on constructive notice of the general conditions of probation listed in Florida Rule of Criminal Procedure 3.986 and these conditions need not be orally pr…
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Join FLexlaw to unlock all legal intelligence“The sentence of 58 months is clearly a departure sentence without written reasons. On remand the trial court should impose a sentence that is within the guidelines.”
Establishes that departure sentences require written reasons and remand is necessary for proper sentencing within guidelines
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Join FLexlaw to unlock all legal intelligenceCherubin was convicted by jury of aggravated assault of a law enforcement officer and carrying a concealed firearm. At sentencing, the trial court imp…
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BY ORDER OF THE COURT:
Upon consideration of appellant’s motion for rehearing and motion for rehearing en banc, it is ORDERED that the motion for rehearing is granted. The opinion filed on June 19, 1996, is withdrawn, and the attached opinion is substituted therefor. The motion for rehearing en banc is denied.
QUINCE, Judge.
Lewis Jerome Cherubin challenges the judgments and sentences imposed after his conviction by a jury of aggravated assault of a law enforcement officer and carrying a concealed firearm. We affirm the judgments withput further discussion but remand for resentencing.
At sentencing the trial court imposed a sentence of 58 months’ imprisonment and three years’ probation. The sentencing guidelines scoresheet indicates a sentence of 39.8 months, with a minimum of 29.85 months and a maximum of 49.75 months. There is nothing in the record to suggest the trial court wanted to impose a departure sentence. The sentence of 58 months is clearly a departure sentence without written reasons. On remand the trial court should impose a sentence that is within the guidelines. Tutt v. State, 620 So. 2d 1110 (Fla. 2d DCA 1993).
Cherubin also challenges several conditions of his probation as being special conditions not orally pronounced at sentencing. The Florida Supreme Court in State v. Hart, 668 So. 2d 589 (Fla.1996), held defendants facing the imposition of probation are on constructive notice of the eleven conditions of probation contained in Florida Rule of Criminal Procedure 3.986. Such conditions are general conditions of probation and need not be orally pronounced at sentencing. The only special conditions imposed by the trial court are that portion of condition 3 which refers to a destructive device and that portion of condition 8 which requires Cheru-bin to pay for random tests for alcohol or drugs. These conditions are hereby stricken since they were not orally pronounced before imposition.
We also strike the $33.00 eost/fine imposed without reference to any statutory authority, and the $2.00 imposed pursuant to section 943.25(13), Florida Statutes (1993), since it was not orally pronounced. See Reyes v. State, 655 So. 2d 111 (Fla. 2d DCA 1995)(en banc). Additionally, the $300.00 attorney fee is hereby stricken without prejudice to reimpose after notice to the defendant. Fortt v. State, 658 So. 2d 637 (Fla. 2d DCA 1995).
We affirm the judgments and remand for resentencing as directed above.
CAMPBELL, A.C.J., and PATTERSON, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Abel Oliveros Reyes v. State, 655 So. 2d 111 (Fla. 2d DCA 1995)
- State v. Hart, 668 So. 2d 589 (Fla. 1996)
- Cordell Tutt v. State, 620 So. 2d 1110 (Fla. 2d DCA 1993)
- Ivery Fortt v. State, 658 So. 2d 637 (Fla. 2d DCA 1995)