EUGENE EVANS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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In this clarification order, the Florida First District Court of Appeal reversed an upward departure sentence because the trial court's written reasons for departure were not timely filed within 15 days as required by statute and rule, despite the misfiling being attributable to clerical error rather than the court's action.
The sentence must be reversed and the cause remanded for resentencing within the guidelines because the courts have consistently strictly construed the statutory and rule requirement that written reasons supporting departures be timely filed, regardless of whether the misfiling was attributable to clerical error.
[1] A sentence must be reversed and remanded for resentencing within the guidelines when written reasons supporting an upward departure sentence are not filed within 15 days…
[2] Strict construction is applied to the statutory requirement that written reasons supporting departure sentences be timely filed.
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Join FLexlaw to unlock all legal intelligence“the courts have consistently strictly construed the requirement that written reasons supporting departures be timely filed”
Establishes the strict construction standard applied to the 15-day filing requirement, which mandates reversal even when the delay results from clerical error.
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Join FLexlaw to unlock all legal intelligenceThe trial court orally pronounced four reasons supporting an upward departure sentence at sentencing. The court prepared written reasons contemporaneo…
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PER CURIAM.
This cause is before us on appellee’s motions for rehearing, clarification and certification. We deny the motions for rehearing and certification, but grant the motion for clarification, and, accordingly, withdraw our former opinion of April 16, 1996, and substitute the following in lieu thereof.
Athough the trial court orally pronounced four reasons supporting appellant’s upward departure sentence, its written reasons for departure were not filed within 15 days of sentencing, as required by section 921.0016(l)(c), Florida Statutes (1993), and Florida Rule of Criminal Procedure 3.702(d)(18)(A).
After writing its departure reasons contemporaneously with its oral sentencing pronouncement, the court assumed that the written reasons had been placed in the court file, but the record discloses that they were erroneously included in the probation file containing the presentence investigative report, apparently due to clerical error. Despite the fact that the error in the misfiling may not have been attributable to the lower court’s actions, we are constrained to conclude that the sentence imposed must be reversed and the cause remanded for resentencing within the guidelines on the ground that the courts have consistently strictly construed the requirement that written reasons supporting departures be timely filed.1 See State v. Colbert, 660 So. 2d 701 (Fla.1995); Ree v. State, 565 So. 2d 1329 (Fla.1990); State v. Pease, 669 So. 2d 314 (Fla. 1st DCA 1996) (on motion for clarification); Hooks v. State, 656 So. 2d 624 (Fla. 1st DCA 1995); Wilcox v. State, 664 So. 2d 55 (Fla. 5th DCA 1995). REVERSED and REMANDED for resentencing.
ERVIN, WEBSTER and MICKLE, JJ., concur. . We are cognizant that our decision appears to conflict with that rendered by the Second District in San Martin v. State, 591 So. 2d 301 (Fla. 2d DCA 1991), review denied, 598 So. 2d 78 (Fla.1992), which affirmed an upward departure sentence involving written reasons filed outside the 15-day period due to a clerical error. Appellee did not argue this case in its brief, but instead relied upon it for the first time in its motion for rehearing, clarification and certification. Under the circumstances, we decline to entertain that authority now. See Cartee v. Department of Health & Rehab. Servs., 354 So. 2d 81 (Fla. 1st DCA 1977) (on petition for reh’g).
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Citator
Cited By
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Carridine v. State, 721 So. 2d 818 (Fla. 4th DCA 1998)…m the guidelines filed nunc pro tunc to the date of sentencing does not cure a failure to provide written reasons at sentencing. See State v. Colbert, 660 So. 2d 701 (Fla.1995); State v. Clary, 694 So. 2d 108 (Fla. 5th DCA 1997). In Evans v. State, 696 So. 2d 368 (Fla. 1st DCA 1996), a defendant was given an upward departure sentence for which oral reasons were pronounced but no written reasons were filed within 15 days of sentencing. The court wrote departure reasons contemporaneously with its oral sentenci…
Authorities Cited
- REE v. State, 565 So. 2d 1329 (Fla. 1990)
- State v. Colbert, 660 So. 2d 701 (Fla. 1995)
- Cartee v. The Fla. Dep't of Health & Rehabilitative Servs., 354 So. 2d 81 (Fla. 1st DCA 1977)
- State v. Pease, 669 So. 2d 314 (Fla. 1st DCA 1996)
- Martin v. State, 591 So. 2d 301 (Fla. 2d DCA 1991)
- Garcia v. Gold Coast Mother & SON, 664 So. 2d 55 (Fla. 3d DCA 1995)
- Wilcox v. State, 664 So. 2d 55 (Fla. 5th DCA 1995)
- Avery Hooks v. State, 656 So. 2d 624 (Fla. 1st DCA 1995)