State v. NelsonState v. Nelson
- Reporters:
- , ,
- Before:
- Fletcher
Lead Opinion
CONFESSION OF ERROR
PER CURIAM.The State appeals a downward departure sentеnce. We reverse.
Defеndant eommendably acknowledges that the court erred in imposing a downward depаrture sentence in the absеnce of written reasons justifying the departure. See Gibson v. State, 661 So.2d 288 (Fla.1995); State v. Hedge, 670 So.2d 191 (Fla. 3d DCA 1996). Thus, we vaсate the downward depаrture sentence and remаnd to allow defendant to withdrаw his plea and procеed to trial or be resenteneed within the guidelines.
Sentence vacated; cause remanded.
Concurrence Opinion
(concurring).
Based on the controlling authority of Jones v. State, 639 So.2d 28 (Fla.1994) and State v. Sherrill, 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 departurе from the sentencing guidelines1 which is now no longer available to the defendant due only to the apparently “inadvertent error of an officеr of the state, the trial judge.” State v. Pease, 669 So.2d 314, 314 (Fla. 1st DCA), rev. granted, 676 So.2d 1369 (Flа.1996)(Case no. 87671; no oral argument). Under the circumstances оf this case, I would certify to thе Supreme Court of Florida а modified version of the questiоn 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?
Notes
. At the close of thе sentencing hearing below, the trial judge orally expressеd two reasons for the downward departure in this case. T. 5. Whilе one reason apрears to be invalid, see State v. Ashley, 549 So.2d 226 (Fla. 3d DCA 1989), the second reason: the circumstances of the crime upon which sentence was еntered showing apparent lack of intent and culpability on the part of the defendant, appears to bе a valid basis for downward departure. See State v. Sachs, 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).