Burke v. State, No. 84-7
| Court | Court of Appeal of Florida (US) |
| Writing for the Court | DAUKSCH; COWART; SHARP; SHARP |
| Citation | 456 So.2d 1245 |
| Parties | Charles BURKE, Jr., Appellant, v. STATE of Florida, Appellee. |
| Docket Number | No. 84-7 |
| Decision Date | 20 September 1984 |
Page 1245
v.
STATE of Florida, Appellee.
Fifth District.
Rehearing Denied Oct. 10, 1984.
Page 1246
James B. Gibson, Public Defender, and Lucinda H. Young, Asst. Public Defender, Daytona Beach, for appellant.
Jim Smith, Atty. Gen., Tallahassee, and Mark C. Menser, Asst. Atty. Gen., Daytona Beach, for appellee.
DAUKSCH, Judge.
This is an appeal from a conviction and sentence for robbery with a firearm. Appellant alleges as error the trial court's failure to sentence him in accordance with the sentencing guidelines enumerated in Florida Rule of Criminal Procedure 3.701.
Although appellant committed the robbery before the effective date of the guidelines, he elected to be sentenced under them. The recommended sentence range for this category 3 1 offense is three and one-half to four and one-half years incarceration. 2 The trial court departed from the guidelines and sentenced appellant to fifteen years incarceration.
Subsection d.11. of criminal rule 3.701 requires that the trial court accompany any sentence outside of the guidelines with a "written statement delineating the reasons for the departure." In the instant case the trial court did not provide a written statement. The court did, however, dictate its reasons for departure into the record. Those reasons are transcribed and are part of the record on appeal. Like the Fourth District Court of Appeal, we believe that oral explanation in the record sufficiently provides the opportunity for meaningful appellate review for purposes of Florida Rule of Criminal Procedure 3.701. Harvey v. State, 450 So.2d 926 (Fla. 4th DCA 1984); cf. Cave v. State, 445 So.2d 341 (Fla.1984); Thompson v. State, 328 So.2d 1 (Fla.1976).
The trial court explained that the guideline sentence is inappropriate in this case because appellant's prior record (which includes juvenile dispositions) reflects an escalating pattern of violent criminal activity over a ten-year period and reflects that appellant has failed to respond to the state's repeated efforts to rehabilitate and/or punish him. In reaching these conclusions about appellant, the lower court considered portions of appellant's prior adult criminal and juvenile delinquency record which the guidelines preclude him from considering when tallying up the scoresheet to determine the recommended sentence. This is proper. A trial court could never deviate from a guideline sentence if, in deciding to deviate, it cannot consider factors other than those it considers in arriving at the guideline sentence. We hold that a trial court may base a departure from the guidelines on factors which it could not contemplate in calculating the guideline sentence. Weems v. State, 451 So.2d 1027 (Fla. 2d DCA 1984).
We are aware that the Fourth District Court of Appeal reached a contrary result
Page 1247
in Harvey v. State. We do not follow Harvey because that result unduly limits the court from deviating from the sentencing guidelines. We certify a conflict with Harvey.The trial court stated reasons sufficient to support sentencing appellant above the recommended range and we affirm.
AFFIRMED.
COWART, J., concurs.
SHARP, J., dissents with opinion.
SHARP, Judge, dissenting.
The trial judge in this case did not place of record his written reasons for departing from the presumptive sentence under the sentencing guidelines. I think this is error given the mandatory language in both Florida Rule of Criminal Procedure...
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Mischler v. State, No. 84-151
...2d DCA 1984); Young v. State, 455 So.2d 551 (Fla. 1st DCA 1984); Kiser v. State, 455 So.2d 1071 (Fla. 1st DCA 1984); Burke v. State, 456 So.2d 1245 (Fla. 5th DCA 1984); Jean v. State, 455 So.2d 1083 (Fla. 2d DCA 11 Williams v. State, 454 So.2d 790 (Fla. 5th DCA 1984); Green v. State, 455 So......
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Pease v. State, No. 87571
...that the reason for departure could be announced orally at sentencing. Brady v. State, 457 So.2d 544 (Fla. 2d DCA 1984); Burke v. State, 456 So.2d 1245 (Fla. 5th DCA 1984), quashed, 483 So.2d 404 (Fla.1985). However, writing for a unanimous court on the issue in State v. Jackson, 478 So.2d ......
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Vance v. State, No. 84-1371
...DCA 1985); Hernandez v. State, 465 So.2d 578 (Fla. 1st DCA 1985); State v. Overton, 464 So.2d 607 (Fla. 3rd DCA 1985); Burke v. State, 456 So.2d 1245 (Fla. 5th DCA 1984); and Harvey v. State, 450 So.2d 926 (Fla. 4th DCA...
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Whitfield v. State, No. 84-2044
...Boynton were not very clear from the record, and there was no scoresheet. Our opinion in Boynton was not consistent with Burke v. State, 456 So.2d 1245 (Fla. 5th DCA 1984), and more than one opinion of the Second District Court of Appeal, including Brady v. State, 457 So.2d 544 (Fla. 2d DCA......
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Mischler v. State, No. 84-151
...2d DCA 1984); Young v. State, 455 So.2d 551 (Fla. 1st DCA 1984); Kiser v. State, 455 So.2d 1071 (Fla. 1st DCA 1984); Burke v. State, 456 So.2d 1245 (Fla. 5th DCA 1984); Jean v. State, 455 So.2d 1083 (Fla. 2d DCA 11 Williams v. State, 454 So.2d 790 (Fla. 5th DCA 1984); Green v. State, 455 So......
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Pease v. State, No. 87571
...that the reason for departure could be announced orally at sentencing. Brady v. State, 457 So.2d 544 (Fla. 2d DCA 1984); Burke v. State, 456 So.2d 1245 (Fla. 5th DCA 1984), quashed, 483 So.2d 404 (Fla.1985). However, writing for a unanimous court on the issue in State v. Jackson, 478 So.2d ......
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Vance v. State, No. 84-1371
...DCA 1985); Hernandez v. State, 465 So.2d 578 (Fla. 1st DCA 1985); State v. Overton, 464 So.2d 607 (Fla. 3rd DCA 1985); Burke v. State, 456 So.2d 1245 (Fla. 5th DCA 1984); and Harvey v. State, 450 So.2d 926 (Fla. 4th DCA...
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Whitfield v. State, No. 84-2044
...Boynton were not very clear from the record, and there was no scoresheet. Our opinion in Boynton was not consistent with Burke v. State, 456 So.2d 1245 (Fla. 5th DCA 1984), and more than one opinion of the Second District Court of Appeal, including Brady v. State, 457 So.2d 544 (Fla. 2d DCA......