State v. PeaseState v. Pease
WOLF, Judge.
Appellant and appellee seek clarification of our opinion in State v. Pease, 21 Fla.L.Weekly D263 (Fla. 1st DCA Jan. 26, 1996). We grant the motions for clarification, withdraw our prior opinion, and substitute the following revised opinion.
The state of Florida appeals from a sentence imposed after a violation of prоbation, alleging that the trial court erred by failing to issue contemporaneous written reasons supporting appellee‘s downward departure sentence. We are constrained to reverse by prior prеcedent established by Ree v. State, 565 So.2d 1329 (Fla.1990), and its progeny, including State v. Colbert, 660 So.2d 701 (Fla. 1995); nevertheless, we find that the result in this case is neither equitable nor just, and
Appellee was on probation for armed burglary, aggravated burglary with a deadly weapon, and resisting arrest with violence. He then committed a misdemeanor battery fоr which he received a one-year sentence in the Leon County Jail.
On December 13, 1994, the trial court held a hearing regarding appellee‘s violation of probation.2 Appellee admitted that he had violated probation by committing the battery. During the sentencing hearing, 14 people testified on appellee‘s behalf. In addition, five other people submitted letters to the court, including his employer who stated he was willing tо continue employing appellee. Defense counsel requested a downward departure for the violation of probation.
The state informed the court that the permitted sentence would be five to twеlve years, and the guidelines recommended seven to nine years. The court noted that although the underlying offenses for the probation “bordered on heinous,” the offense violating the probation was “a moment of stupidity.” He also noted that appellee had no other violations, had a job to support his family, and had developed a strong support system as evidenced by the numerous witnesses who testified in his behalf. Appellee was sentenced to a one-year term for the violation of probation that would run concurrently with the sentence for the misdemeanor battery. The one-year term was followed by five years of probation.3
On December 13, 1994 (the same day as the hearing), the court entered a written order revoking probation and sentencing appellant. The court did not include written reasons for the departure. The state filed a timely notiсe of appeal on December 28, 1994.
On February 28, 1995, the trial court entered an order for downward depаrture from the guidelines sentence nunc pro tunc December 13, 1994. The order stated that it was “based upon the hаnd written draft notes made on the bench by the Court at the time of sentencing [and that] [t]he order was not typed at that time because the Court‘s Judicial Assistant was absent.”
When a trial court sentences a defendant for a term less than the time suggested in the sentencing guidelines, it must provide written reasons contemporaneously with the sentence. Ree v. State, 565 So.2d 1329 (Fla.1990); Pope v. State, 561 So.2d 554 (Fla.1990); Schummer v. State, 657 So.2d 3 (Fla. 1st DCA 1995); State v. Howell, 572 So.2d 1009 (Fla. 1st DCA 1991). If a trial court gives its reasons in its oral pronouncement and later commits them to written form, it commits revеrsible error. State v. Colbert, 660 So.2d 701 (Fla.1995). In the instant case, the trial court failed to issue reasons until February 28, 1995, after the state had filed a notice of appeal. Because the court failed to issue reasons at the time of the sentenсing order, the sentence is vacated, and we remand for resentencing within the guidelines.
We recognize that this opinion fails to give effect to the well-reasoned decision of the trial court, and is fundamentally unfair to аppellee in this case.4 We also recognize
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?
VAN NORTWICK, J., concurs.
MINER, J., concurs in result only.
Notes
Departures from the recommended or permitted guideline sentence should be avoided unless therе are circumstances or factors that reasonably justify aggravating or mitigating the sentence. Any sentence outside the permitted guideline range must be accompanied by a written statement delineating the reasons for the departure. Reasons for deviating from the guidelines shall not include factors relating to prior arrеsts without conviction or the instant offenses for which convictions have not been obtained.