565 So. 2d 708 | Fla. Dist. Ct. App. | 1990
Rehearing
ON MOTION FOR REHEARING
Charles Reed timely moves for rehearing of Reed v. State, 565 So.2d 708 (Fla. 5th DCA 1990), wherein we affirmed his guidelines departure sentence upon the authority of Pope v. State, 542 So.2d 423 (Fla. 5th DCA 1989). The affirmance followed an earlier appeal in which we vacated his sentence and remanded for resentencing because the trial court failed to provide written reasons for imposing a departure sentence. Reed v. State, 539 So.2d 580 (Fla. 5th DCA 1989).
The Florida Supreme Court now has reversed this court’s decision in Pope and requires that, where a sentence is vacated for lack of written reasons, resentencing on remand must be within the guidelines. Pope v. State, 561 So.2d 554 (Fla.1990).
The state opposes what it terms a retroactive application of Pope to this case. The state claims that the trial court, which
This principle, that the law in effect at the time of appeal should be applied, is applicable to motions for rehearing. See, e.g., Williams v. State, 546 So.2d 1120 (Fla. 4th DCA 1989); Winfield v. State, 503 So.2d 333 (Fla. 2d DCA 1986).
We recognize that a motion for rehearing of Pope is pending before our supreme court. The state contends that application of the Pope rule would be improper before a decision is made on the motion for rehearing but cites not authority, nor have we found a case to support that contention. Additionally, the Pope rule, as established by the supreme court, has already been applied. Allen v. State, 561 So.2d 1339 (Fla. 2d DCA 1990); Dyre v. State, 560 So.2d 429 (Fla. 5th DCA 1990).
We grant the motion for rehearing, vacate the sentences previously imposed, and reluctantly call upon the trial judge to sentence Reed for the third time. Sentencing shall be within the guidelines.
Sentence VACATED; REMANDED.
DAUKSCH and COBB, JJ., concur.
Lead Opinion
Affirmed on the authority of Pope v. State, 542 So.2d 423 (Fla. 5th DCA 1989), rev. granted, 550 So.2d 467 (Fla.1989).
AFFIRMED.