Bryant v. State

• Decision Date: 09 October 2014
• Docket Number: No. SC12–1507.,SC12–1507.
• Citation: 148 So.3d 1251
• Parties: Reginald L. BRYANT, Petitioner, v. STATE of Florida, Respondent.
• Court: Florida Supreme Court

148 So.3d 1251

Reginald L. BRYANT, Petitioner
v.
STATE of Florida, Respondent.

No. SC12–1507.

Supreme Court of Florida.

Oct. 9, 2014.

148 So.3d 1252

James Marion Moorman, Public Defender, and Megan Olson, Assistant Public Defender, Tenth Judicial Circuit, Bartow, FL, for Petitioner.

Pamela Jo Bondi, Attorney General, Tallahassee, FL, and Robert Jay Krauss, Bureau Chief, and Ronald Napolitano, Assistant Attorney General, and Christina Zuccaro, Assistant Attorney General, Tampa, FL, for Respondent.

Opinion

PERRY, J.

We have for review the decision in Bryant v. State, 93 So.3d 381 (Fla. 2d DCA 2012), in which the Second District Court of Appeal held that where a sentence was erroneous because the trial court failed to file the required written findings to support a departure, the trial court may again impose a departure sentence on remand. The district court certified conflict with the Fifth District Court of Appeal's decision in Goldberg v. State, 76 So.3d 1072 (Fla. 5th DCA 2011), which reached the opposite conclusion based on similar facts. We have jurisdiction. See art. V, § 3(b)(4), Fla. Const. For the reasons explained below, we quash the Second District's decision in Bryant and approve the decision in Goldberg.

BACKGROUND

Reginald Bryant was charged with the crimes of robbery (Count I) and felony petit theft (Count II), and the jury found him guilty of the lesser included offense of petit theft on the first count and guilty as charged on the second count. At the sentencing

148 So.3d 1253

hearing, the trial judge dismissed Count I and sentenced Bryant to a five-year prison sentence on Count II only. Bryant's offense was subject to the Criminal Punishment Code (CPC). See ch. 921, Fla. Stat. (2009). However, under section 775.082(10), Florida Statutes, Bryant was entitled to a nonstate prison sanction unless the trial court made written findings that doing so “could present a danger to the public.” § 775.082(10), Fla. Stat. (2009). Here, “the parties agree and the record indicates that the trial court sentenced Bryant to a five-year prison sentence—despite the fact that he only scored 17.1 sentencing points—without making any written findings to support the upward departure.” Bryant, 93 So.3d at 383 ; § 775.082(10), Fla. Stat.

Bryant appealed to the district court and filed a motion to correct sentencing error in the trial court under Florida Rule of Criminal Procedure 3.800(b)(2). Bryant, 93 So.3d at 382. In each proceeding, he argued that because the trial court failed to enter the written findings required by section 775.082(10), the upward departure sentence must be vacated and he must be resentenced to a nonstate prison sentence in accordance with his scoresheet. Id. The trial court orally denied the rule 3.800(b)(2) motion and again failed to enter written findings supporting the departure sentence.

Certified Conflict

In Bryant's direct appeal, the Second District accepted the State's argument that despite the trial court's error in failing to enter written findings, examination of the “record support[ed] a finding that sentencing Bryant to a non-state prison sentence would have presented a pecuniary danger to the public based on his prior record.” Bryant, 93 So.3d at 383. The district court “agree[d] with the State that the ‘danger to the public’ contemplated by section 775.082(10) may be a pecuniary one” and that the “record indicate[d] that such was the basis for the trial court's imposition of a prison sanction.” Id. Accordingly, the Second District remanded for resentencing, “at which the trial court may again impose a prison sanction if it makes the proper written findings.” Id. (citing State v. Collins, 985 So.2d 985, 989 (Fla.2008) ). In justification of its decision, the Second District stated:

We note that this is not a case in which the trial court provided reasons for a departure sentence that on appeal were determined to be invalid departure reasons. See Shull v. Dugger, 515 So.2d 748, 750 (Fla.1987) (“[A] trial court may not enunciate new reasons for a departure sentence after the reasons given for the original departure sentence have been reversed by an appellate court.”). Rather, the trial court failed to specify in writing its reasons for departing. As such, “the underlying reason for [the] decision in Shull —preventing after-the-fact justifications for a previously imposed departure sentence—is not implicated here.” Collins, 985 So.2d at 992.

Bryant, 93 So.3d at 383. The Second District certified conflict with the Fifth District's holding in Goldberg.

In Goldberg, Jeffery Goldberg was convicted of grand theft from a person sixty-five years of age or older, and was sentenced to three years' imprisonment despite scoring less than twenty-three points on his sentencing scoresheet. Goldberg, 76 So.3d at 1073. The trial court failed to make written findings that a non-state prison sanction could present a danger to the public. Id. at 1074. After his conviction and sentence were entered, Goldberg filed a rule 3.800(b)(2) motion to correct the sentencing error. Id. In response to the motion, the trial court entered an order reiterating the rationale for the prison sentence given by the trial court at the

148 So.3d 1254

sentencing hearing, but failed to include a finding of possible public endangerment. Id. Because the trial court failed to correct its initial failure to make the requisite written findings, the Fifth District held:

The trial court may well have been able to correct its initial failure to make the necessary written findings required by section 775.082(10) by doing so in response to Goldberg's rule 3.800(b)(2) motion. However, it failed to do so. On remand, the trial court must sentence Goldberg to a nonstate prison sanction.

Goldberg, 76 So.3d at 1074 (citation omitted). The district courts are thus in conflict regarding whether a trial court may impose a sentence that departs from the CPC on remand where the trial judge failed to comply with the requirements of section 775.082(10) mandating the filing of written findings, both at the original sentencing and in response to the defendant's rule 3.800(b)(2) motion.

ANALYSIS

The issue in this case concerns whether a trial court may lawfully impose a prison sanction under section 775.082(10) on remand for resentencing. Because this is a pure question of law, our review is de novo. See Bradley James Jackson v. State, 64 So.3d 90, 93 (Fla.2011). Bryant argues that section 775.082(10) imposes a mandatory requirement for a judge to enter a written order finding that imposition of a nonstate prison sentence presents a danger to the public, and that failure to comply with the statute even after a rule 3.800(b)(2) motion raising the issue precludes the trial court from again imposing an enhanced departure sentence on remand. The State argues that resentencing is an entirely new proceeding where the trial court may depart so long as it complies with the statute. To address the issue, we begin by reviewing our decisions concerning departure sentences both prior to and after the enactment of the CPC. We then address the effect of section 775.082(10), before concluding that Shull and Pope v. State, 561 So.2d 554 (Fla.1990), are still applicable law.

Departure Sentences Before the Criminal Punishment Code

Generally, under sentencing schemes in existence prior to the CPC, when the reasons provided by the trial court in support of a departure are found invalid on appeal, resentencing following remand must be within the guidelines. See Shull, 515 So.2d at 750 ; Roberts v. State, 547 So.2d 129, 130–31 (Fla.1989) ; Williams v. State, 492 So.2d 1308, 1309 (Fla.1986). We begin our analysis with Shull, wherein the defendant was sentenced to a ten-year upward departure sentence based solely on the habitual offender statute. Shull, 515 So.2d at 749. The prisoner sought a writ of habeas corpus alleging that he was entitled to be released because his sentence had been served. Id. The State conceded that Shull was entitled to resentencing, but argued that he was not entitled to release because the trial court could justify the reason for its departure on remand. Id. We disagreed, noting that “[g]enerally, when all of the reasons stated by the trial court in support of departure are found invalid, resentencing following remand must be within the presumptive guidelines sentence.” Id. (citing Williams, 492 So.2d 1308 ; Foister v. State, 510 So.2d 371 (Fla. 1st DCA 1987) ; Royal v. State, 508 So.2d 1313 (Fla. 2d DCA 1987) ; Carter v. State, 485 So.2d 1292 (Fla. 4th DCA), rev. denied, 494 So.2d 1149 (Fla.1986) ). We further observed that some district courts were distinguishing “the situation where the only reason given for departure was valid at the time ... considered, ... but was later invalidated by this Court.” Id. (emphasis in original). The district courts were permitting the trial courts on remand to again depart from the guidelines if the new reasons given both existed at the time

148 So.3d 1255...