Brown v. State
Decision Date | 24 March 1994 |
Docket Number | No. 93-342,93-342 |
Citation | 634 So.2d 735 |
Parties | 19 Fla. L. Weekly D645 Keith Bernard BROWN, Appellant, v. STATE of Florida, Appellee. |
Court | Florida District Court of Appeals |
Charlie J. Gillette, Jr., Brannon & Gillette, P.A., Jacksonville, for appellant.
Robert A. Butterworth, Atty. Gen., and Charlie McCoy, Asst. Atty. Gen., Tallahassee, for appellee.
Appellant was convicted of second degree murder and armed robbery. The recommended guidelines sentencing range was 22-27 years. The trial court imposed a life sentence for the second degree murder and a consecutive 27 year sentence for the armed robbery, with 3-year concurrent minimum mandatory terms for use of a firearm. On direct appeal, appellant argued his sentence had to be remanded for imposition of a sentence within the guidelines range because the written reasons for departure were not given contemporaneously. This court affirmed because in Ree v. State, 565 So.2d 1329 (Fla.1990), the supreme court said its ruling, requiring contemporaneous written reasons for departure, would apply only prospectively. See Brown v. State, 565 So.2d 369 (Fla. 1st DCA 1990), review denied, 576 So.2d 285 (Fla.1991).
Subsequently, in Smith v. State, 598 So.2d 1063, 1066 (Fla.1992), the supreme court modified Ree, and held
any decision of this Court announcing a new rule of law, or merely applying an established rule of law to a new or different factual situation, must be given retrospective application by the courts of this state in every case pending on direct review or not yet final....
Our decision today requires us to recede in part from Ree to the extent that we now hold that Ree shall apply to all cases not yet final when mandate issued after rehearing in Ree.
Relying on Smith, on November 17, 1992, appellant filed his rule 3.850 motion for post-conviction relief. He alleged he was sentenced on August 18, 1989; six days later, on August 24, 1989, the court filed written reasons for departing from the guidelines; because the written reasons were not contemporaneous, the sentence must be vacated and he must be resentenced within the guidelines.
The trial court denied appellant's motion for post-conviction relief, reasoning as follows:
Defendant's argument is unavailing as it is inconsistent with the supreme court's overall holding in Smith that changes in the law should be applied retrospectively only in cases pending on direct review or not yet final. Id. at 1066. In fact, there is language in the decision to the effect that this court should not retroactively apply Ree in the case at bar since the judgment and sentence have become final and Defendant collaterally raises the instant claim in a motion for post-conviction relief. [footnote] Id. at 1066, n. 5
In Pope v. State, 561 So.2d 554, 556 (Fla.1990), the court held that "when an appellate court reverses a departure sentence because there were no written reasons, the court must remand for resentencing with no possibility of departure from the guidelines." The problem in Pope was that while the trial court orally announced reasons for departure, they were never reduced to writing.
Next, in Ree v. State, 565 So.2d 1329 (Fla.1990), the court held that written reasons for departure must be issued at the time of sentencing, however, it stated this ruling would apply prospectively only. Then in State v. Lyles, 576 So.2d 706 (Fla.1991), the court stated that "written reasons [for departure] must be issued on the same day as sentencing." The court also said Ree would not apply retroactively to the case at hand. And in State v. Williams, 576 So.2d 281 (Fla.1991), the court "approved a departure sentence that had been imposed without contemporaneous written reasons because the sentence had been imposed before Ree, even though Williams' appeal was not final when Ree was issued." Smith at 1064.
Finally, in Smith, the court held "that Ree shall apply to all cases not yet final when mandate issued after rehearing in Ree." Smith at 1066. The court receded from Lyles and Williams "to the extent they declined to apply Ree retrospectively to non-final cases." Id.
Appellant contends that in accordance with Smith, since his case was not yet final when Ree was decided, it must be reversed and remanded for...
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State v. Brown
...Public Defender, and Paula S. Saunders, Asst. Public Defender, Tallahassee, for respondent. PER CURIAM. We review Brown v. State, 634 So.2d 735 (Fla. 1st DCA 1994), in which the court certified the following question as one of great public importance: IN VIEW OF SMITH v. STATE, 598 So.2d 10......
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State v. Davis, 93-2835
...date of mandate in Ree was July 19, 1990.2 The failure to raise the Ree issue on appeal distinguishes this case from Brown v. State, 634 So.2d 735 (Fla. 1st DCA 1994), upon which Davis ...
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