State v. Nelson, No. 96-2763

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No. 96-2763 | Fla. Dist. Ct. App. | May 14, 1997

Lead Opinion

CONFESSION OF ERROR

PER CURIAM.

The State appeals a downward departure sentence. We reverse.

Defendant eommendably acknowledges that the court erred in imposing a downward departure sentence in the absence of written reasons justifying the departure. See Gibson v. State, 661 So. 2d 288" court="Fla." date_filed="1995-10-05" href="https://app.midpage.ai/document/gibson-v-state-1143057?utm_source=webapp" opinion_id="1143057">661 So.2d 288 (Fla.1995); State v. Hedge, 670 So. 2d 191" court="Fla. Dist. Ct. App." date_filed="1996-03-27" href="https://app.midpage.ai/document/state-v-tiedge-1657213?utm_source=webapp" opinion_id="1657213">670 So.2d 191 (Fla. 3d DCA 1996). Thus, we vacate the downward departure sentence and remand to allow defendant to withdraw his plea and proceed to trial or be resenteneed within the guidelines.

Sentence vacated; cause remanded.

Concurrence Opinion

FLETCHER, Judge

(concurring).

Based on the controlling authority of Jones v. State, 639 So. 2d 28" court="Fla." date_filed="1994-07-07" href="https://app.midpage.ai/document/jones-v-state-1781919?utm_source=webapp" opinion_id="1781919">639 So.2d 28 (Fla.1994) and State v. Sherrill, 678 So. 2d 7" court="Fla. Dist. Ct. App." date_filed="1996-08-14" href="https://app.midpage.ai/document/state-v-sherrill-7699053?utm_source=webapp" opinion_id="7699053">678 So.2d 7 (Fla. 3d DCA 1996), I join the majority opinion. I write separately only to express my concern over the apparent inequity of result in this case involving an arguably proper downward departure from the sentencing guidelines1 which is now no longer available to the defendant due only to the apparently “inadvertent error of an officer of the state, the trial judge.” State v. Pease, 669 So. 2d 314" court="Fla. Dist. Ct. App." date_filed="1996-03-11" href="https://app.midpage.ai/document/state-v-pease-1142276?utm_source=webapp" opinion_id="1142276">669 So.2d 314, 314 (Fla. 1st DCA), rev. granted, 676 So.2d 1369 (Fla.1996)(Case no. 87671; no oral argument). Under the circumstances of this case, I would certify to the Supreme Court of Florida a modified version of the question certified by the First District in the Pease case:

WHEN A DOWNWARD DEPARTURE SENTENCE IS REVERSED SOLELY FOR FAILURE OF THE TRIAL COURT TO COMMIT VALID, ORAL REASONS SUPPORTING THE DEPARTURE TO WRITING, MAY THE TRIAL COURT, ON REMAND, AGAIN ENTER THE DOWNWARD DEPARTURE SENTENCE IF SUPPORTED BY VALID, CONTEMPORANEOUS WRITTEN REASONS, OR, ALTERNATIVELY, MAY A DOWNWARD DEPARTURE SENTENCE BE AFFIRMED WHERE THE TRIAL COURT ORALLY PRONOUNCED VALID REASONS FOR DEPARTURE AT THE TIME OF SENTENCING, BUT INADVERTENTLY FAILED TO ENTER CONTEMPORANEOUS WRITTEN REASONS?

. At the close of the sentencing hearing below, the trial judge orally expressed two reasons for the downward departure in this case. T. 5. While one reason appears to be invalid, see State v. Ashley, 549 So. 2d 226" court="Fla. Dist. Ct. App." date_filed="1989-09-26" href="https://app.midpage.ai/document/state-v-ashley-1800196?utm_source=webapp" opinion_id="1800196">549 So.2d 226 (Fla. 3d DCA 1989), the second reason: the circumstances of the crime upon which sentence was entered showing apparent lack of intent and culpability on the part of the defendant, appears to be a valid basis for downward departure. See State v. Sachs, 526 So. 2d 48" court="Fla." date_filed="1988-05-26" href="https://app.midpage.ai/document/state-v-sachs-1683533?utm_source=webapp" opinion_id="1683533">526 So.2d 48, 50 (Fla.1988). Had these reasons been reduced to writing, the downward departure would not be subject to reversal. § 921.001(6), Fla. Stat. (1995).