Magrans v. State, 89-2981

• Decision Date: 30 July 1991
• Docket Number: No. 89-2981,89-2981
• Citation: 584 So.2d 1056
• Parties: Sergio MAGRANS, Appellant, v. The STATE of Florida, Appellee. 584 So.2d 1056, 16 Fla. L. Week. D1982
• Court: Florida District Court of Appeals

Page 1056

584 So.2d 1056

Sergio MAGRANS, Appellant, v. The STATE of Florida, Appellee.

No. 89-2981.

584 So.2d 1056, 16 Fla. L. Week. D1982

District Court of Appeal of Florida Third District.

July 30, 1991.

Rehearing Denied Sept. 27, 1991.

An Appeal from the Circuit Court for Dade County; Michael H. Salmon, Judge.

Bennett H. Brummer, Public Defender, and Marti Rothenberg, Asst. Public Defender, for appellant.

Robert A. Butterworth, Atty. Gen., and Charles M. Fahlbusch, Asst. Atty. Gen., for appellee.

Before SCHWARTZ, C.J., and COPE and GERSTEN, JJ.

PER CURIAM.

Appellant, Sergio Magrans, appeals his convictions and sentences for two counts of sexual battery upon a child, and one count of lewd and lascivious conduct in the presence of a child. We affirm in part, reverse in part, and remand.

We find no merit in the numerous errors which appellant assigns to his convictions. Accordingly we affirm appellant's convictions in their entirety.

However, appellant contends, and the State agrees, that the trial court erred in sentencing appellant outside the sentencing guidelines without providing contemporaneous written reasons for the departure. We agree that the departure sentence for lewd and lascivious conduct must be vacated and remanded for resentencing within the guidelines. See Pope v. State, 561 So.2d 554 (Fla.1990).

Affirmed in part, reversed in part, and remanded.

SCHWARTZ, C.J., and GERSTEN, J., concur.

COPE, Judge (specially concurring).

While I join the opinion of the court, this case again presents the question whether the decision in Pope v. State, 561 So.2d 554 (Fla.1990), is applicable to sentencing orders entered prior to its announcement on April 26, 1990. I would certify, as we have in the past, the following question as being of great public importance:

SHOULD POPE V. STATE BE APPLIED RETROACTIVELY TO SENTENCES IMPOSED PRIOR TO APRIL 26, 1990?

See Crenshaw v. State, 570 So.2d 349 (Fla. 3d DCA 1990); Fonseca v. State, 570 So.2d 424 (Fla. 3d DCA 1990); State v. Reliford, 568 So.2d 534 (Fla. 3d DCA 1990), review dismissed, 576 So.2d 290 (Fla.1991); Stennis v. State, 567 So.2d 1071 (Fla.3d DCA 1990); Perez v. State, 566 So.2d 881 (Fla. 3d DCA 1990); and State v. Whipple, 15 F.L.W. D1916 (Fla. 3d DCA July 24, 1990). It may be that the pendency of the certified question in the above cases in the Supreme Court of Florida will create a sufficient jurisdictional basis to permit review of this case, see The Florida Star v. B.J.F., 530 So.2d 286, 288 n. 3 (Fla.1988), but there is no sound reason to withhold certification in this case when we have certified the identical question in identical ...