Pope v. StatePope v. State
Defendant appeals from a sentence imposed after the trial judge announced oral reasons for departure, but failed to provide written reasons. We must vacate the sentence and remand for resentencing for failure to provide written reаsons. See State v. Jackson, 478 So.2d 1054 (Fla. 1985), receded from on other grounds, Wilkerson v. State, 513 So.2d 664 (Fla. 1987).
A more troublesome issue raised in this appeal is the contention of appellаnt that in remanding the case for resentencing, we must advise the trial court that he is now precluded from entering a departure sentence because it was not done properly the first time. We reject that contention, but not without observing that the various district courts are in disarray on the issue of the proper instruction to be given the trial court when a cause is remanded due to the trial court‘s failure to initially provide written reasons for a departure sentence. Compare, e.g., Daughtry v. State, 521 So.2d 208 (Fla. 2d DCA), review denied, 528 So.2d 1181 (Fla. 1988) (whеre trial court failed to provide written reasons for the departure sentence the cause is remanded for resentencing within the recommended range or for a statement of рroper written reasons for a departure from that range) with Jenkins v. State, 528 So.2d 527 (Fla. 2d DCA 1988) (where court failed to prоvide written reasons to support departure sentence the cause was remanded with directions to resentence defendant within the sentencing guidelines); compare Padgett v. State, 534 So.2d 1246 (Fla. 3d DCA 1988) (where court failed to prоvide written reasons for the departure sentence the cause was remanded with directions to provide
We agree with thоse cases which permit the trial court, on remand, to supply written reasons for departure where only oral reasons were given at sentencing. We find nothing in Shull v. Dugger, 515 So.2d 748 (Fla. 1987) which prohibits this result.
In Oden v. State, 463 So.2d 313 (Fla. 1st DCA 1984), approved, State v. Oden, 478 So.2d 51 (Fla. 1985) the appellate cоurt vacated a departure sentence for failure of the trial court to provide written reasons, and remanded for resentencing. In so doing, the court observed that “[s]hould the trial cоurt again decide to depart from the guidelines, it should follow the requirements of Jackson [v. State, 454 So.2d 691 (Fla. 1st DCA 1984) (written reasons required for departure, approved as to the requirement of written reasons, State v. Jackson, 478 So.2d 1054 (Fla. 1985))].” In Barbera v. State, 505 So.2d 413 (Fla. 1987), in vacating а downward departure sentence, the supreme court remanded for resentencing “so that the trial judge can write out his specific reasons for departure.” Nothing in the opinion distinguishes thе writing requirements in mitigated sentences from those in aggravated sentences. We therefore reject the defendant‘s contention that the trial judge may not depart from the recommendеd guidelines sentence upon resentencing. See also Reed v. State, 539 So.2d 580 (Fla. 5th DCA 1989).
Since this defendant must be resentenced, we cаll to the attention of the trial court the fact that the scoresheet used here included points for only one of the two cases before the court for sentencing. Although the presumptive guidelines sentence would appear not to be affected had points for the other case been included, nevertheless, on remand, a correct scoresheet should be used.
Sentence VACATED; REMANDED.
SHARP, C.J. and GOSHORN, J., concur.