Leeks v. State

• Decision Date: 16 January 2008
• Docket Number: No. 2D06-3332.,2D06-3332.
• Parties: Hubert Bradford LEEKS, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

973 So.2d 1200

Hubert Bradford LEEKS, Appellant, v. STATE of Florida, Appellee.

No. 2D06-3332.

District Court of Appeal of Florida, Second District.

January 16, 2008.

James Marion Moorman, Public Defender, and Clark E. Green, Assistant Public Defender, Bartow, for Appellant.

Bill McCollum, Attorney General, Tallahassee, and Susan D. Dunlevy, Assistant Attorney General, Tampa, for Appellee.

NORTHCUTT, Chief Judge.

Hubert Bradford Leeks was sentenced to a term of imprisonment followed by probation for a crime committed in February 1998. In 2006 Leeks admitted violating his probation and was sentenced to 166 months in prison. The State acknowledges that this was an upward departure from the sentencing guidelines applicable to Leeks's 1998 crime and that it must be reversed because the court failed to file written reasons for the departure. The only disputed issue on appeal concerns the sentence that Leeks may be given on remand. Whereas the State seeks an additional opportunity to prove grounds for an upward departure sentence, Leeks maintains that the circuit court must impose a guidelines sentence. As will be seen, Leeks is correct.

When a departure sentence is reversed because the reasons tendered for the departure are invalid or unsupported, on remand the court must impose a guidelines sentence. State v. Betancourt, 552 So.2d 1107 (Fla.1989); Shull v. Dugger, 515 So.2d 748 (Fla.1987). But, generally, when a sentence is reversed for the sentencing court's failure to give departure reasons, and it appears that the court did not realize that it was imposing a departure sentence, on remand the court may again consider departing from the guidelines. The rationale is that, because the sentencing court failed in the first instance to appreciate that it was imposing a departure sentence, it had no opportunity to determine whether there were valid reasons for a departure. Betancourt, 552 So.2d at 1108; Roberts v. State, 547 So.2d 129 (Fla.1989); see also Waldron v. State, 529 So.2d 772 (Fla. 2d DCA 1988) (en banc).

At Leeks's sentencing hearing the prosecutor advised the circuit court incorrectly that the 166-month sentence was within a twenty-five percent increase permitted by the guidelines, § 921.0016(1)(b), Fla. Stat. (1995). Therefore, it is clear that when sentencing Leeks the court was unaware that it was imposing a departure sentence. If that were the end of it, the State's position that the court must have another opportunity to consider imposing a departure sentence would prevail.

But Leeks's sentencing hearing was not the end of it. After this appeal was filed, Leeks timely moved to have his sentence corrected pursuant to Florida Rule of Criminal Procedure 3.800(b)(2). See Richardson v. State, 915 So.2d 766 (Fla. 2d DCA 2005) (noting that defendant preserved objection to upward departure sentence by filing 3.800(b)(2) motion); Doyle v. State, 788 So.2d 368 (Fla. 2d DCA 2001); see also Beck v. State, 817 So.2d 858 (Fla. 5th DCA 2002). Leeks's motion complained that the circuit court had imposed an upward departure sentence without giving written reasons. After reviewing the motion, the circuit court issued an order acknowledging that Leeks had made a facially sufficient claim for relief that was not conclusively refuted by the record and directing the State to show cause why Leeks was not entitled to relief.

In response, the State agreed that Leeks's sentence was an improper departure without written reasons. Still, it posited that the court had "manifested its intent to exceed guidelines during the sentencing hearing" but that the court "apparently chose the advocated 166 month sentence to avoid the necessity of filing written departure reasons." The State suggested that the court should resolve the matter simply by filing written reasons for the departure in response to Leeks's motion. In support of this suggestion it cited to Beck, 817 So.2d 858, which affirmed an upward departure sentence after the trial court filed written reasons for the departure, in response to the defendant's 3.800(b)(2) motion to correct sentencing error. Notably, the State's response to Leeks's motion did not articulate any valid reasons the court might have had for departing from the sentencing guidelines. Nor did the State request an evidentiary hearing in which to prove grounds for a departure, although evidentiary hearings are expressly contemplated by rule 3.800(b)(1)(B). See Fla. R.Crim. P. 3.800(b)(2)(B) (requiring application of procedures in 3.800(b)(1)(B) to resolve (b)(2) motions). Notwithstanding the State's concession that Leeks's motion was well taken, the circuit court took no further action. Thus, sixty days after Leeks filed his motion, it was deemed denied by operation of rule 3.800(b)(1)(B). See Fla. R.Crim. P. 3.800(b)(2)(B) (requiring application of procedures in 3.800(b)(1)(B) to resolve (b)(2) motions).

It can be seen, then, that Leeks's case is before us in a far different posture than the situation addressed in Betancourt, Roberts, and Waldron. Although the circuit court below did not initially appreciate that it was imposing a departure sentence, thereafter it was alerted to that fact in a proceeding intended to permit it to correct its error. Thus, unlike the situations in the cases just mentioned, we review this case after the circuit court has had ample opportunity to determine whether there were valid reasons for departing from the sentencing guidelines and to record those reasons in writing but has failed to do so.

Neither is this case akin to Beck, as suggested by the State when responding to Leeks's motion in the circuit court. In Beck, the Fifth District upheld the defendant's upward departure sentence against his claim that he was entitled to a guidelines sentence solely because the written reasons for the departure were not timely filed. In that case, the judge announced departure reasons at the sentencing hearing but did not reduce them to writing until the defendant filed a 3.800(b)(2) motion during his appeal. The Fifth District held that the defendant suffered no prejudice by the late submission alone and, noting that the defendant did not challenge the validity of the trial judge's departure reasons, upheld the departure sentence. The Beck court cited to the Florida Supreme Court's decision in Mandri v. State, 813 So.2d 65 (Fla.2002), wherein the court held that the late filing of written departure reasons in response to the defendant's rule 3.800(b)(2) motion did not entitle the defendant to a reversal and remand for sentencing within the guidelines.

This case is distinguishable from Mandri and Beck because the circuit court below has never filed written reasons to justify Leeks's departure sentence, whether in response to his 3.800(b)(2) motion or otherwise. The importance of this distinction was underscored in Maddox v. State, 760 So.2d 89 (Fla.2000). In that case the supreme court concluded that the failure to file written departure reasons is an important omission that "affects the integrity of the sentencing process concerning the critical question of the length of the sentence." Id. at 107. The court held that, even after enactment of legislation eliminating...