Pittman v. State, 88-0475
Decision Date | 28 December 1990 |
Docket Number | No. 88-0475,88-0475 |
Citation | 572 So.2d 29,16 Fla. L. Weekly 118 |
Parties | 16 Fla. L. Weekly 118 Carl PITTMAN, Appellant, v. STATE of Florida, Appellee. |
Court | Florida District Court of Appeals |
We affirm appellant's convictions, finding no merit in any of the three points on appeal dealing with the trial phase of these proceedings. We reverse the sentences, however, and remand for resentencing based upon the following errors.
It was impermissible to reclassify the offense in Count I from a second-degree felony to a first-degree felony. While appellant was charged with attempted first-degree murder, he was actually convicted of the lesser-included offense of aggravated battery with a firearm. Since use of a firearm is an essential element of this crime, reclassification under section 775.087(1)(b), Florida Statutes (1987), was inappropriate. See Cherry v. State, 540 So.2d 146 (Fla. 4th DCA 1989). See also Bell v. State, 394 So.2d 570 (Fla. 5th DCA 1981).
A trial court must issue an order containing written reasons for departure from a guidelines sentence at the time of sentencing. Ree v. State, 565 So.2d 1329 (Fla.1990). A considerable period of time elapsed between the sentencing hearing and rendition of the departure order here. Thus, we are compelled to reverse and remand under Ree. We do not need to apply Ree retroactively to reach this result because this jurisdiction already had established the Ree rule almost two years before appellant's sentencing hearing. See Ree v. State, 512 So.2d 1085 (Fla. 4th DCA 1987) ( ). Therefore, the trial court's failure to provide written reasons for departure at the time of sentencing constitutes reversible error.
On remand, the trial court is directed to resentence appellant within the guidelines. See Pope v. State, 561 So.2d 554 (Fla.1990).
Because we are required to reverse and remand for resentencing in any event, it would serve no useful purpose to treat collateral issues raised by appellant in connection with his original sentencing.
We affirm the convictions but reverse and remand for resentencing.
AFFIRMED IN PART; REVERSED IN PART AND REMANDED.
I agree with the conclusions reached in the majority opinion with the single exception that I would remand with directions that the...
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Pittman v. State
...Atty. Gen., Tallahassee, and Melvina Racey Flaherty, Asst. Atty. Gen., West Palm Beach, for appellee. DELL, Judge. In Pittman v. State, 572 So.2d 29 (Fla. 4th DCA 1990), this court reversed appellant's sentence because the trial court failed to issue its sentencing order in compliance with ......
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...v. State, 565 So.2d 1329 (Fla.1990) and this court's opinions in Ree v. State, 512 So.2d 1085 (Fla. 4th DCA 1987) and Pittman v. State, 572 So.2d 29 (Fla. 4th DCA 1990). Immediately after our initial opinion issued, the supreme court modified Ree in State v. Lyles, 576 So.2d 706 (Fla.1991).......
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Rivas v. State, 89-2473
...trial court and remand this case for sentencing within the guidelines. See Pope v. State, 561 So.2d 554 (Fla.1990) and Pittman v. State, 572 So.2d 29 (Fla. 4th DCA 1990). AFFIRMED IN PART; REVERSED IN PART and DELL, GARRETT and FARMER, JJ., concur. ...