O'Brien v. State, 84-349
| Decision Date | 14 November 1985 |
| Docket Number | No. 84-349,84-349 |
| Citation | 478 So.2d 497,10 Fla. L. Weekly 2544 |
| Parties | 10 Fla. L. Weekly 2544 Robert J. O'BRIEN, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
James B. Gibson, Public Defender, and Daniel J. Schafer, Asst. Public Defender, Daytona Beach, for appellant.
Jim Smith, Atty. Gen., Tallahassee, and Margene A. Roper, Asst. Atty. Gen., Daytona Beach, for appellee.
En Banc.
An en banc opinion issued in this case on August 15, 1985, withdrawing a prior en banc opinion issued on June 6, 1985. Both resulted from three-to-three tie votes on the merits of this appeal. In those opinions we construed Florida Rule of Appellate Procedure 9.331(a), which provides:
(a) En Banc Proceedings: Generally. A majority of the judges of a district court of appeal participating may order a proceeding pending before the court be determined en banc. A district court of appeal en banc shall consist of the judges in regular active service on the court. En banc hearings and rehearings shall not be ordered unless the case is of exceptional importance or unless necessary to maintain uniformity in the court's decisions. The en banc decision shall be by a majority of the active judges actually participating and voting on the case. In the event of a tie vote, the panel decision of the district court shall stand as the decision of the court. If there is no panel decision, a tie vote will affirm the trial court decision. (Emphasis added.)
In our August en banc opinion we interpreted the reference to "the panel decision of the district court" in the next to last sentence of the quoted subsection to mean the proposed written opinion of the original three-judge panel, which would have reversed the trial judge and conflicted with the prior opinion of this court in Carter v. State, 458 So.2d 417 (Fla. 5th DCA 1984). On October 29, 1985, we withdrew by court order the August 15 opinion in order to correct what we now perceive to have been an erroneous construction and application of the en banc rule, and because of the intervening opinion from the Florida Supreme Court of State v. Jackson, --- So.2d ----, 10 FLW 564 (Fla. October 17, 1985). We have jurisdiction to do so. See § 35.10, Fla.Stat. (1983); Higdon v. State, 465 So.2d 1309 (Fla. 5th DCA 1985); State Farm Mutual Auto. Ins. Co. v. Judges of the District Court of Appeal, Fifth District, 405 So.2d 980 (Fla.1981).
Jackson approves the trial court's utilization of the sentencing guidelines effective at the time of sentencing, irrespective of the fact that other guidelines were in effect at the time of commission of the crime. In other words, the sentencing guidelines are procedural rather than substantive. Despite the persuasive logic of Justice Ehrlich's dissent in Jackson in respect to substantial rights and ex post facto laws, we are bound by the majority decision, which compels affirmance of the instant appeal. This is so because any new sentencing of O'Brien would be based upon Florida Rule of Criminal Procedure 3.701(d)(12) now in effect. 1 See Julian v. The Honorable Robert E. Lee, Jr., 473 So.2d 736 (Fla. 5th DCA 1985); Kocsis v. State, 467 So.2d 384 (Fla. 5th DCA 1985). O'Brien was sentenced to thirty months' incarceration and five years' probation (with a condition of 364 days in jail) for two second-degree felonies. Therefore, the incarcerative portion of his split sentence was forty-two months (within the guideline range) and his total sanction (incarceration and probation) of seven-and-a-half years did not exceed the statutory term of thirty years.
Nevertheless, in light of the inherent ambiguities of the present en banc rule in regard to tie votes, the problems of interpretation which the rule has caused us in this case, and the necessity that we adopt principles to ensure consistency of law within this district, we elect to once again address the rule and engraft upon it a meaningful construction for future guidance. See In Re...
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