Boynton v. State, No. 84-40

• Court: Florida District Court of Appeals
• Writing for the Court: BARKETT; ANSTEAD
• Citation: 473 So.2d 703,10 Fla. L. Weekly 795
• Parties: 10 Fla. L. Weekly 795 Daniel BOYNTON, Appellant, v. STATE of Florida, Appellee.
• Decision Date: 27 March 1985
• Docket Number: No. 84-40

Page 703

473 So.2d 703 10 Fla. L. Weekly 795 Daniel BOYNTON, Appellant,
v.
STATE of Florida, Appellee. No. 84-40. District Court of Appeal of Florida,
Fourth District. March 27, 1985.

Page 704

Richard L. Jorandby, Public Defender, and Gary Caldwell, Asst. Public Defender, West Palm Beach, for appellant.

Jim Smith, Atty. Gen., Tallahassee, and James P. McLane, Asst. Atty. Gen., West Palm Beach, for appellee.

BARKETT, Judge.

This is an appeal from a conviction and sentence for burglary of a dwelling with intent to commit theft. We affirm the conviction and reverse the sentence.

Appellant contends that the trial court erred by imposing a sentence in excess of that recommended by the sentencing guidelines, Rule 3.701, Florida Rules of Criminal Procedure, and by failing to justify in writing the reasons for departure from the recommended guidelines sentence. The record below reflects conversations between the trial judge and the attorneys discussing reasons for departure from the recommended guidelines sentence. The reasons discussed include a decayed juvenile record, an arrest for which no conviction was obtained, and a concern about the lack of a guideline category for first degree felonies punishable by life imprisonment. It is unclear from this record what reasons were relied upon by the trial court in deciding to exceed the guidelines, and therefore, it is difficult for a reviewing court to determine if they would have been "clear and convincing" as required by the guidelines.

We are mindful that there is confusion in the law as to whether "a written statement" is necessary to comply with Florida Rule of Criminal Procedure 3.701(d)(11) when a sentencing judge departs from the guidelines in sentencing a convicted defendant. This court in Harvey v. State, 450 So.2d 926 (Fla. 4th DCA 1984), held that dictation into the record of clear and convincing reasons satisfies the rule. The fifth district in Burke v. State, 456 So.2d 1245 (Fla. 5th DCA 1984), and the second district in Brady v. State, 457 So.2d 544 (Fla. 2d DCA 1984), and Klapp v. State, 456 So.2d 970 (Fla. 2d DCA 1984), have followed Harvey v. State. The first district, however, in Roux v. State, 455 So.2d 495 (Fla. 1st DCA 1984), and in Jackson v. State, 454 So.2d 691 (Fla. 1st DCA 1984), has held that a writing is required. We feel that the better view is to require the trial judge to set forth in writing the reasons for departing from the presumptive sentence.

First, the language of the sentencing guidelines is clearly mandatory. Rule 3.701(d)(11), Florida Rules of Criminal Procedure, provides:

Any sentence outside of the guidelines must be accompanied by a written statement delineating the reasons for the departure. (Emphasis supplied.)

Additionally, Rule 3.701(b)(6), Florida Rules of Criminal Procedure, provides:

Page 705

While the sentencing guidelines are designed to aid the judge in the sentencing decision and are not intended to usurp judicial discretion, departures from the presumptive sentences established in the guidelines shall be articulated in writing and made only for clear and convincing reasons. (Emphasis supplied.)

"Written" needs no interpretation. It is an unambiguous word and we should give drafters of statutes or rules the benefit of the English language. See, e.g., St. Petersburg Bank & Trust Co. v. Hamm, 414 So.2d 1071 (Fla.1982). There are no exigent circumstances present which demand departure from, or "interpretation" of, the rule which requires a written statement. It is a simple matter to remand and obtain written reasons.

This seems to be the view that has been adopted by our supreme court in other areas of the law requiring a written finding of fact or a written reason for a decision. For example, section 921.141(3), Florida Statutes (1983), regarding imposition of the death sentence, provides:

In each case in which the court imposes the death sentence, the determination of the court shall be supported by specific written findings of fact based upon the circumstances in subsections (5) and (6) and upon the records of the trial and the sentencing proceedings. If the court does not make the findings requiring the death sentence, the court shall impose sentence of life imprisonment in accordance with s.775.082.

It is true that our supreme court in 1976 held that dictation into the record when transcribed met the requirements of the statute. Thompson v. State, 328 So.2d 1 (Fla.1976). In 1984, however, in Cave v. State, 445 So.2d 341 (Fla.1984), the court stated:

It must be stressed that the trial judge did dictate his findings in support of the sentence of death into the record at the time of sentencing. We have previously held that "[s]uch dictation, when transcribed, becomes a finding of fact in writing and provides the opportunity for meaningful review, as required by 921.141, Florida Statutes." Thompson v. State, 328 So.2d 1 (Fla.1976). Accordingly, we deny appellant's motion to dismiss for lack of jurisdiction to vacate the death sentence, to remand for imposition of a life sentence, and to order this matter to the Fourth District Court of Appeal for further appellate review.

Nevertheless, we find it prudent to require that written findings of fact be entered into the record on appeal and grant appellee's motion to relinquish jurisdiction and to supplement the record. Accordingly, this cause is temporarily remanded to the trial court so that written findings of fact as required under section 921.141(3), Florida Statutes (1981), may be prepared by the trial...