DONALD JAMES CULVER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Donald Culver appeals his convictions and sentences for sexual crimes against a child. The court affirmed his convictions on all counts but reversed and remanded the sentence for the incest conviction because it exceeded the statutory guidelines without written justification.
The court affirmed the convictions on all three guilty counts, finding the first two conviction-related issues without merit. However, the court reversed the sentence imposed on the incest conviction because the five-year prison sentence exceeded the guidelines range of sixteen to twenty-seven months without written reasons for departure as required by statute.
[1] A written sentence must conform to the trial court's oral pronouncement.
[2] A sentence exceeding the statutory guidelines range requires the trial court to provide written reasons for the departure.
Previewing 2 of 3 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“The trial court did not provide written reasons for the departure, as required by section 921.001(6).”
Establishes the fundamental defect in the sentencing that required reversal—the trial court's failure to comply with statutory requirements for departing from guidelines.
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Join FLexlaw to unlock all legal intelligenceCulver was charged with three counts of engaging a child in sexual activity, sexual battery, and incest. A jury acquitted him on counts I and II but f…
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THREADGILL, Judge.
Donald James Culver appeals judgments and sentences for engaging a child in sexual activity, sexual battery, and incest. He raises three issues on appeal. We find the first two issues, which relate to his convictions, to be without merit, and we affirm the judgments without discussion. We find merit, however, in the third issue, regarding the sentence imposed on the incest conviction.
The State filed a five-count information charging Culver with three counts of engaging a child in sexual activity, sexual battery, and incest. A jury found him not guilty on counts I and II, engaging a child in sexual activity. It found him guilty as charged on count III, engaging a child in sexual activity; count IV, sexual battery; and count V, incest. The trial court orally pronounced a sentence of seventeen years’ prison followed by ten years’ probation on counts III and IV, which are first-degree felonies, and a sentence of five years’ prison on count five, a third-degree felony. The written sentence, however, erroneously reflects no term of probation on count III and a ten-year term of probation on count V.
The offenses charged in counts III and IV were alleged to have occurred between January 1993 and January 1994, while the offense charged in count V was alleged to have occurred after January 1, 1994. As a result, two scoresheets were prepared in this case. See § 921.001(4)(b)4., Fla. Stat. (1995). The scoresheet for counts III and IV reflects a guidelines range of seven to seventeen years’ prison. The scoresheet for count V reflects a guidelines range of sixteen to twenty-seven months’ prison. Thus, the five-year prison sentence on count V exceeds the guidelines range. The trial court did not provide written reasons for the departure, as required by section 921.001(6).
We, therefore, reverse the sentence imposed on count V and remand for resentencing within the guidelines on that count. We also remand for the written sentence on count III to be conformed to the trial court’s oral pronouncement. We affirm in all other respects.
Affirmed in part; reversed in part.
CAMPBELL, A.C.J., and BLUE, J., Concur.
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Cash v. State, 779 So. 2d 425 (Fla. 2d DCA 2000)…s required to give written reasons justifying the departure. See § 921.001(6), Fla. Stat. (1997). The trial court failed to provide written reasons. Accordingly, we reverse the sentence as to count I and remand for resentencing. See Culver v. State, 727 So. 2d 278 (Fla. 2d DCA 1999). Reversed and remanded. PARKER, A.C.J., and CASANUEVA, J., Concur.…
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Hinkle v. State, 737 So. 2d 1152 (Fla. 2d DCA 1999)…e written reasons for departure.1 It is well-settled that the failure to include written reasons for departure requires a reversal for resentencing within the guidelines. [*1154] See State v. Colbert, 660 So. 2d 701, 702 (Fla.1996); Culver v. State, 727 So. 2d 278, 279 (Fla. 2d DCA 1999); State v. Campbell, 673 So. 2d 925, 925 (Fla. 2d DCA 1996). Accordingly, we reverse and remand for resentencing on Counts II and III within the 19972 sentencing guidelines. PARKER, C.J., and PATTERSON and DAVIS, JJ., Concur.…
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Culver v. State, 790 So. 2d 1126 (Fla. 2d DCA 2001)…of the information), one count of sexual battery (count IV of the information), and one count of incest (count V of the information). On direct appeal, this [*1127] court affirmed Culver’s convictions but remanded for resentencing. Culver v. State, 727 So. 2d 278 (Fla. 2d DCA 1999). This court found that the trial court orally pronounced concurrent sentences of seventeen years’ prison followed by ten years’ probation on counts III and IV and a concurrent sentence of five years’ prison on count V. Id. at 278-…