DENO S. GREEN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Deno Green appealed his 72-month sentence for attempted voluntary manslaughter with a firearm, arguing it exceeded the five-year statutory maximum for a third-degree felony. The Fifth District Court of Appeal affirmed the sentence, holding that the 72-month sentence was within the sentencing guidelines as a permissible variation (less than 25% deviation) and did not constitute a departure requiring written findings.
The court held that a sentence within the sentencing guidelines that falls within 25% of the calculated recommended sentence is a permissible variation, not a departure requiring written findings. The 72-month sentence imposed was within the guidelines and did not violate the statutory maximum provisions because it constituted a lawful variation under the sentencing guidelines framework.
[1] A sentence imposed under the guidelines that exceeds the statutory maximum sentence must be imposed unless it constitutes a departure sentence with written findings.
[2] A sentence variation of less than 25% from the recommended guidelines sentence is permissible without stated reasons and does not constitute a departure.
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Join FLexlaw to unlock all legal intelligence“If a recommended sentence under the guidelines exceeds the maximum sentence otherwise authorized by s. 775.082, the sentence under the guidelines must be imposed, absent a departure.”
Establishes the statutory framework allowing guidelines sentences to exceed statutory maximums absent a departure with written findings
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Join FLexlaw to unlock all legal intelligenceGreen was convicted of attempted voluntary manslaughter with a firearm, a third-degree felony. His sentencing guidelines scoresheet showed 93.8 total …
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COBB, Judge.
Deno Green appeals the sentence imposed for one count of attempted voluntary manslaughter with a firearm, a third degree felony.1 Green scored 93.8 total sentence points on the guidelines scoresheet, which resulted in a recommended state prison term of 65.8 months. He was sentenced to 72 months’ incarceration with credit for time served. Green argues that the trial court erred by imposing a sentence in excess of the five year statutory maximum for a third degree felony. See § 775.082(3)(d), Fla.Stat. (1995). He acknowledges that subsection 921.001(5) authorizes a trial court to exceed the maximum sentence otherwise permitted by section 775.092; however, Green contends that where the recommended range encompasses the statutory maximum, the statutory maximum constitutes the maximum allowable sentence.
Section 921.001(5) of the Florida Statutes provides in pertinent part:
Sentences imposed by trial court judges under the 1994 revised sentencing guidelines on or after January 1, 1994, must be within the 1994 guidelines unless there is a departure sentence with written findings. If a recommended sentence under the guidelines exceeds the maximum sentence otherwise authorized by s. 775.082, the sentence under the guidelines must be imposed, absent a departure. If a departure, with written findings, is imposed, such sentence must be within, any relevant maximum sentence limitations provided in s. 775.082. (Emphasis added).
See also, Gardner v. State, 661 So. 2d 1274 (Fla. 5th DCA 1995) (rejecting the arguments that section 921.001(5) deprived a defendant of due process by failing to provide adequate notice and violates judicial rule-making authority).
Green’s “total sentence points,”, as defined by Florida Rule of Criminal Procedure 3.702(d)(15), aggregated 93.8 points, which total represents, after deducting 28 points pursuant to Rule 3.702(d)(16), a recommended state prison term of 65.8 months. The sentence imposed on Green of 72 months did not deviate from the recommended sentence of 65.8 months by more than 25% (¿a, 16.45 months); therefore, subsection (d)(18) of the rules did not require the trial court to accompany its sentence with a written state ment delineating the reasons for departure. There was no departure.
There is no conflict between the 72-month sentence and the provisions of section 921.001(5), Florida Statutes, quoted above. The trial court did impose a “sentence under the guidelines” (see emphasized language of the statute quoted above) when it imposed 72 months. There was no departure sentence in this case, either under the rule or under the statute. A “departure” from a “recommended guidelines sentence” occurs when the sentence imposed varies by more than 25% from a calculated specific number of 12 or above arrived at by subtracting 28 points from the “total sentence points.” §§ 921.0014(2), 921.0016(1), Fla.Stat.; Fla. R.Crim.P. 3.702(d)(15) & (16). A sentence which deviates from this specific number by less than 25% is a permissible “variation,” not a “departure.” § 921.0016(l)(b), Fla.Stat. The word “departure” in Rule 8.702(18) and the term “departs from” in (18)(a) have the same meaning as the word “departure” has in section 921.0016 and these terms do not encompass those variations from the recommended guidelines sentence which are permitted without stated reasons. See, e.g., Delaney v. State, 673 So. 2d 541 (Fla. 3d DCA 1996).
The emphasized line from section 921.001(5) quoted above should read, for purposes of clarity, as follows: “If the recommended sentence under the guidelines exceeds the maximum sentence otherwise authorized by s. 775.082, a sentence under the guidelines must be imposed, absent a departure.” It would appear, from a grammatical standpoint, that the articles in the foregoing sentence are misplaced in the printed statute.
AFFIRMED.
W. SHARP and GOSHORN, JJ., concur. . §§ 782.07, 777.04(4)(d), Fla.Stat. (1995).
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Citator
Cited By (12 total)
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Mays v. State, 717 So. 2d 515 (Fla. 1998)…bit of criminal prohibitions, but also to the penalties they impose.” Carawan v. State, 515 So. 2d 161, 165 (Fla.1987), superseded by statute on other grounds, § 775.021(4), Fla. Stat. (1989). In each of the cases before us — Myers; Green v. State, 691 So. 2d 502 (Fla. 5th DCA 1997); Mays v. State, 693 So. 2d 52 (Fla. 5th DCA 1997); and Wilkins v. State, 693 So. 2d 62 (Fla. 5th DCA 1997) — the total sentence points on the guidelines scoresheet resulted in a recommended sentence in excess of the [*517] statut…
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Myers v. State, 696 So. 2d 893 (Fla. 4th DCA 1997)…h Martinez and Mays to the extent that it applies to the case we face today, in which the recommended sentence itself exceeds the section 775.082 maximum without any variation. For these and additional reasons, we also disagree with Green v. State, 691 So. 2d 502 (Fla. 5th DCA 1997). In that case, the recommended sentence was 65.8 months and the trial court sentenced the defendant to 72 months, but the section 775.082 maximum was 60 months. In approving the sentence, the district court observed that the sent…
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Thompson v. State, 707 So. 2d 1191 (Fla. 4th DCA 1998)…heet. As we did in Myers, we certify conflict with Mays v. State, 693 So. 2d 52 (Fla. 5th DCA), rev. granted, 700 So. 2d 686 (Fla.1997); Martinez v. State, 692 So. 2d 199 (Fla. 3d DCA), rev. dismissed, 697 So. 2d 1217 (Fla.1997); and Green v. State, 691 So. 2d 502 (Fla. 5th DCA), rev. granted 699 So. 2d 1373 (Fla.1997); and with the subsequently issued decision in Floyd v. State, 707 So. 2d 833 (Fla. 1st DCA 1998). REVERSED AND REMANDED FOR RESENTENCING TO SENTENCE RECOMMENDED UNDER GUIDELINES. DELL and S…
Previewing 3 of 12 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Gardner v. State, 661 So. 2d 1274 (Fla. 5th DCA 1996)
- Delancy v. State, 673 So. 2d 541 (Fla. 3d DCA 1996)
- Jarman v. State, 673 So. 2d 541 (Fla. 1st DCA 1996)