STATE OF FLORIDA, APPELLANT,
v.
RODNEY THOMAS A/K/A JAMES BERNARD FORD, APPELLEE
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The trial court imposed a downward departure sentence on a habitual offender by stating reasons orally at sentencing but failing to file a contemporaneous written statement of those reasons. The court reverses and remands for resentencing within guidelines, but certifies to the Florida Supreme Court the question of whether such a departure can be affirmed despite the missing written statement when valid reasons were orally pronounced.
The court reverses and remands for resentencing within guidelines because the trial judge failed to provide contemporaneous written reasons for the downward departure, as required by sentencing guidelines law. However, the court certifies to the Florida Supreme Court the question of whether such a sentence may be affirmed despite the omission of the written statement when valid oral reasons were given.
[1] A trial judge may impose a sentence upon a habitual offender that is more lenient than the one provided by the habitual offender statute.
[2] In imposing a more lenient sentence than the habitual offender statute provides, a trial judge must still adhere to the sentencing guidelines and state appropriate reason…
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Join FLexlaw to unlock all legal intelligence“the trial judge 'must still adhere to the sentencing guidelines and must state appropriate reasons for any downward departure from the guidelines.' State v. Rinkins, 646 So.2d 727, 729 (Fla.1994). Reversal is warranted where the trial judge fails to provide such reasons for departure.”
Establishes the legal requirement that downward departures must include stated reasons and that failure to provide them warrants reversal.
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Join FLexlaw to unlock all legal intelligenceThe trial court found the defendant to be a habitual offender and departed downward from the guidelines sentence of 6.5 years to impose 10 years proba…
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PER CURIAM.
In this case, the trial court found defendant to be a habitual offender but departed downward from the recommended sentence under the guidelines (6]/j years) to impose a sentence of 10 years probation with a special condition for treatment at the Drug Farm followed by 6 months community control and 2 years drug reporting probation. In so doing, the judge fully stated his reasons for departure on the record at sentencing but failed to file a written statement contemporaneously with sentencing. As we stated in State v. White, 693 So. 2d 54 (Fla. 4th DCA 1997),
“The Florida Supreme Court has held that a trial judge may impose a sentence upon a habitual offender that is more lenient than the one provided by the habitual offender statute. Geohagen v. State, 639 So. 2d 611, 612 (Fla.1994). However, in imposing a more lenient sentence, the trial judge ‘must still adhere to the sentencing guidelines and must state appropriate reasons for any downward departure from the guidelines.’ State v. Rinkins, 646 So. 2d 727, 729 (Fla.1994). Reversal is warranted where the trial judge fails to provide such reasons for departure. See id.; Geohagen, 639 So. 2d at 612.”
693 So. 2d at 55. Moreover in Jones v. State, 639 So. 2d 28 (Fla.1994), the court expressly held that under Pope v. State, 561 So. 2d 554 (Fla.1990), a below guidelines departure sentence which lacks contemporaneous written reasons for the departure must be remanded for resentencing within guidelines. Accordingly we reverse and remand for resentencing within the guidelines.
At the same time, however, we agree with the First District in State v. Pease, 669 So. 2d 314 (Fla. 1st DCA 1996), rev. granted, 676 So. 2d 1369 (Fla.1996), that the remedy of resentencing within the guidelines is “fundamentally unfair”. It requires an offender to spend more time in prison, not because of anything done by the offender, but instead because of an inadvertent error by a state official, the sentencing judge.1 We also note that section 921.0016(l)(c), Florida Statutes (1995), now allows the trial judge to have a transcript of the sentencing hearing filed within 7 days from sentencing to act as the written statement for the departure. We therefore certify to the supreme court the same question that the first district did in Pease:
May a downward departure sentence be affirmed where the trial court orally pronounced valid reasons for departure at the time of sentencing, but inadvertently failed to enter contemporaneous written reasons?
STONE, C.J., and GUNTHER and FARMER, JJ., concur. . We express no opinion as to whether the failure of defense counsel at the sentencing hearing to assert the contemporaneous writing requirement for downward departures constitutes per se ineffective assistance of counsel.
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Pease v. State, 712 So. 2d 374 (Fla. 1997)…in the guidelines is “fundamentally unfair”. It requires an offender to spend more time in prison, not because of anything done by the offender, but instead because of an inadvertent error by a state official, the sentencing judge. State v. Thomas, 696 So. 2d 1290, 1291 (Fla. 4th DCA 1997). We agree with these views of the district courts, and hold that once it is established that there were valid reasons for sentencing the defendant below the guidelines explicated, at the time of sentencing, that sentence sh…
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Izquierdo v. State, 935 So. 2d 1243 (Fla. 5th DCA 2006)…specifically dispute his allegations). No state action caused his failure to timely appeal. See Thomas v. State, 905 So. 2d 1037, 1037-38 (Fla. 5th DCA 2005) (recognizing that state action may facilitate belated appeal); see also Latimore v. State, 696 So. 2d 1290 (Fla. 4th DCA 1997) (holding that defendant was entitled to belated appeal because his right to appeal had been frustrated by circuit court clerk’s “state action”). There is no constitutional right to a belated appeal of the denial of a postcon-vic…
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Previewing 3 of 9 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)
- State v. Australia Ozell Rinkins, Jr., 646 So. 2d 727 (Fla. 1994)
- Geohagen v. State, 639 So. 2d 611 (Fla. 1994)
- Jones v. State, 639 So. 2d 28 (Fla. 1994)
- State v. Pease, 669 So. 2d 314 (Fla. 1st DCA 1996)
- State v. Theodis Hardnett White, 693 So. 2d 54 (Fla. 4th DCA 1997)