Clark v. StateClark v. State
We affirm appellant‘s convictions for sale and possession of cocaine. However, although the issue was not raised in this court by appellant, we have grave reservations regarding the sentencing procedure used in these two cases.
Appellant was tried by a jury in BR-8 on November 19, 1986, Judge Yawn presiding, and was found guilty. He was then tried by a jury in BR-7 on November 21, 1986, Judge Beauchamp presiding. During the jury‘s deliberations in BR-7, appellant was sentenced by Judge Yawn in BR-8 to concurrent four year terms, based on a sentencing guidelines scoresheet which recommended 3 1/2 to 4 1/2 years incarceration.
The jury returned guilty verdicts later that afternoon in BR-7. After a fifteen minute recess, Judge Beauchamp sentenced appellant in BR-7 to concurrent four year terms, to run consecutive to the sentences imposed in BR-8. This sentence was based on a sentencing guidelines scoresheet identical to the one used in BR-8, which scored a tоtal of 137 points (65 points for the primary offense of selling cocaine and 8 points for the additional offense at conviction of possession of cocaine, plus 64 points for prior convictions for robbery, resisting an officer with violence, possession of heroin, and three misdemeanors). Neither scoresheet included points for the convictions in its companion case. Appellant‘s attorney argued at the sentencing hearing in BR-7 that the sentences should not be made to run consecutive to the sentences imposed in BR-8, and that the State could have charged all four offenses in the same information, in which case consecutive sentences would have constituted a departure from the recommended range.1
The рarties were ordered to file supplemental briefs on the question of the propriety of this sentencing procedure.2 Appellant‘s brief asserts that the term “court“, as used in
The State argues that “offenses pending before the trial court for sentencing” has been found to mean that a guilty plea, nolo plea, or guilty verdict has been obtained for the offense, citing Gallagher v. State, 476 So.2d 754 (Fla. 5th DCA 1985).4 It asserts
The State is correct that under these particular circumstances, both сases were not technically “pending for sentencing” at the same time and all four offenses could not be included in the same scoresheet.6 We therefore affirm appellant‘s сonvictions and sentences in both cases, without prejudice to his right to seek appropriate post-conviction relief under Florida Rules of Criminal Procedure
We are concerned, however, that our affirmance of these sentences might seem to imply that this court would approve manipulating the trial and sentencing calendars in such cases in order to impose what amounts to a departure sentence without the necessity of articulating reasons for departure and undergoing appellate review of the validity of those reasоns. We are convinced that the legislature did not intend such a technical manipulation of the guidelines procedures.
The better procedure in such cases, where it would not involve unreasonable delay, would be for the trial judge(s) to defer sentencing until the guilt or innocence of the defendant has been adjudicated in all cases pending before the court at the same time. One scoresheet would then be prepared which would include (as either “primary offense” or “additional offenses“) all cases pending for sentencing. Each sentencing judge wоuld use this scoresheet, with the restriction that the total of all sentences imposed may not exceed the guidelines recommended range without the articulation of facts or circumstances which reasonably justify the aggravation of the sentences.
Because of our concern that the trial courts, and the attorneys who practice before them, be given adеquate guidance in the proper implementation of the sentencing guidelines procedures mandated by the Florida Legislature, we certify to the Florida Supreme Court, as a matter of great public importance, the following question:
Whether it is the trial court‘s duty to assure that all of a defendant‘s cases pending in a particular county at the time of that defendant‘s first sentencing hearing are disposed of using one scoresheet, including deferral of sentencing until all of the pending cases have been adjudicated unless this would cause unreasonable
delаy or would unduly burden the court or prejudice the defendant?
ERVIN and JOANOS, JJ., concur.
Notes
1. Whether one sеntencing guidelines scoresheet should have been prepared covering all four offenses pending before the Circuit Court for Alachua County for sentencing, pursuant to
2. Whether this scorеsheet should have been used by each judge in sentencing appellant; and
3. Whether the cases should be remanded for resentencing with the restriction that the total of the four sentences may not exceed the recommended guidelines range provided in the amended scoresheet, or whether the sentence should be allowed to exceed the recommendеd range if the departure is based upon circumstances or factors which reasonably justify the aggravation of the sentence.
A defendant is entitled to the benefits of a uniform scoresheet and contemporaneous concurrent sentencing only for those of his cases actually pending before a judge in that circuit for sеntencing. The fact that another case is pending in which the defendant has entered a not guilty plea or denial, and is awaiting trial, or a final hearing, is insufficient to constitute another offensе pending for sentencing.498 So.2d at 554.