JIMMY PIERRE, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Appellate court vacated upward departure sentence because trial judge failed to file written reasons within seven days as required by statute, and remanded for imposition of guidelines sentence; convictions affirmed.
An upward departure sentence must be supported by written reasons filed within seven days of sentencing, and failure to do so requires vacation and remand for a guidelines sentence.
[1] A trial court's oral announcement of an upward departure sentence at sentencing does not satisfy the statutory requirement that written reasons be filed within seven days…
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Join FLexlaw to unlock all legal intelligence“she did not file written reasons in support of the departure -within seven days thereafter as required by section 921.0016(l)(c), Florida Statutes (1997) and Florida Rule of Criminal Procedure 8.703(d)(29)(A)”
Explaining the basis for vacating the departure sentence
Pierre was convicted of multiple offenses including grand theft and received an upward departure sentence announced by the trial judge as based on sub…
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SCHWARTZ, Chief Judge.
Although the trial judge announced at sentencing that she was imposing an upward departure sentence because of subsequent crimes, see Harris v. State, 685 So. 2d 1282 (Fla.1996), she did not file written reasons in support of the departure -within seven days thereafter as required by section 921.0016(l)(c), Florida Statutes (1997) and Florida Rule of Criminal Procedure 8.703(d)(29)(A). The sentence is therefore vacated for imposition of a guidelines sentence. See State v. Colbert, 660 So. 2d 701 (Fla.1995); Owens v. State, 598 So. 2d 64 (Fla.1992); Hoffman v. State, 700 So. 2d 765 (Fla. 3d DCA 1997). Compare Pease v. State, — So. 2d - (Fla. Case no. 87,571, opinion filed, October 9, 1997)[22 FLW S624] (downward departure); State v. Cruz, 710 So. 2d 123 (Fla. 4th DCA 1998)(same); State v. Stallman, 707 So. 2d 353 (Fla. 2d DCA 1998)(same).
In addition, the sentence for the multiple offenses of which the defendant was convicted included one for grand theft which exceeded the statutory maximum of five years. Upon remand the sentence for this offense (Count V) should be corrected accordingly.
There is no claim of error in the convictions and they are therefore affirmed.
Affirmed in part, vacated in part and remanded.
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Weiss v. State, 720 So. 2d 1113 (Fla. 3d DCA 1998)…prison followed by two (2) years of Community Control followed by five (5) years of probation. DONE AND ORDERED at Miami, Dade County, Florida, this 28th day of August, 1997. VICTORIA PLATZER Circuit Court Judge .It is true that Pierre v. State, 708 So. 2d 1037 (Fla. 3d DCA 1998) (which was not governed by the Reform Act), indicates that the seven day period runs from the announcement of an upward departure at sentencing. That statement was unnecessary to the result, however, because the date of the writte…
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Jordan v. State, 728 So. 2d 748 (Fla. 3d DCA 1998)…COPE, J. Defendant-appellant Jordan moves for rehearing, contending that the decision in this case is in conflict with Pierre v. State, 708 So. 2d 1037 (Fla. 3d DCA 1998). In Pierre, this court reversed an upward departure sentence and remanded for sentencing within the guidelines, because the trial court did not file written reasons within seven days. See id. at 1037-38. We distinguish Pierre, bec…
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Carlos C. Vicaria, M.D. v. The Dep't OF Health, 715 So. 2d 285 (Fla. 3d DCA 1998)…1998)(enforcing statutory requirements of standardized administrative penalties). As in the analogous case of the necessity for written reasons to support upward guideline departures, see State v. Colbert, 660 So. 2d 701 (Fla.1995); Pierre v. State, 708 So. 2d 1037 (Fla. 3d DCA 1998); Boynton v. State, 473 So. 2d 703 (Fla. 4th DCA 1985), approved, 478 So. 2d 351 (Fla.1985), cert. denied, 475 U.S. 1029, 106 S.Ct. 1232, 89 L.Ed.2d 341 (1986), I would therefore vacate that portion of the penalty imposed which is…
Authorities Cited
- Owens v. State, 598 So. 2d 64 (Fla. 1992)
- State v. Colbert, 660 So. 2d 701 (Fla. 1995)
- Harris v. State, 685 So. 2d 1282 (Fla. 1996)
- State v. Cruz, 710 So. 2d 123 (Fla. 4th DCA 1998)
- Hoffman v. State, 700 So. 2d 765 (Fla. 3d DCA 1997)
- State v. Stallman, 707 So. 2d 353 (Fla. 2d DCA 1998)