Ree v. State, No. 71424

CourtUnited States State Supreme Court of Florida
Writing for the CourtPER CURIAM; SHAW
Citation565 So.2d 1329
Parties15 Fla. L. Weekly S395 James REE, Petitioner, v. STATE of Florida, Respondent.
Docket NumberNo. 71424
Decision Date19 July 1990

Page 1329

565 So.2d 1329
15 Fla. L. Weekly S395
James REE, Petitioner,
v.
STATE of Florida, Respondent.
No. 71424.
Supreme Court of Florida.
July 19, 1990.

Page 1330

Richard L. Jorandby, Public Defender, and Anthony Calvello, Asst. Public Defender, West Palm Beach, for petitioner.

Robert A. Butterworth, Atty. Gen., and Amy Lynn Diem, Joan Fowler and Georgina Jimenez-Orosa, Asst. Attys. Gen., for respondent.

PER CURIAM.

Upon petition for rehearing, we withdraw our prior opinion in this case and substitute the following as the opinion of the Court.

We have for review Ree v. State, 512 So.2d 1085 (Fla. 4th DCA 1987), based on express and direct conflict with Lambert v. State, 545 So.2d 838 (Fla.1989). We have jurisdiction. Art. V, § 3(b)(3), Fla. Const. Although jurisdiction was granted based on conflict, the opinion below also certified the following question of great public importance:

Must a trial court produce written reasons for departure from the sentencing guidelines at the sentencing hearing?

Ree, 512 So.2d at 1086.

James Ree pled nolo contendere to burglary, possession of burglary tools, and criminal mischief. The trial court withheld adjudication and placed Ree on two years' probation. 1 Eight months later, the state filed an affidavit alleging that Ree had violated his probation by committing sexual batteries on two minors. Id.

Subsequently, the trial court revoked Ree's probation, adjudicated him guilty of the initial charges, and sentenced him to a total of ten and one-half years in prison. 2 This constituted a six-cell upward departure from the guidelines' recommended sentence. Five days later, the sentencing judge signed a written order citing four reasons justifying the guidelines departure. Id. These reasons were:

1. That substantial psychological and emotional trauma has [sic] been caused to the victim as a result of the Defendant's acts which have led to this violation of probation, the magnitude of which may only be fully realized at a stage much later in her life.

2. The Defendant was on probation for less than eight months before he committed the acts for which he is in violation leading this Court to conclude he is not suitable for rehabilitation.

3. The acts leading to this probation violation are sufficiently egregious and severe to warrant a substantial departure because he has satisfied the court's conscience of his having committed a crime still classified as capital under Florida law.

4. The Defendant's acts while on probation indicate a trend toward criminality of increasing severity and indicate the Defendant's sociopathic tendencies making departure essential for the safety and well being of the public.

The district court found the first two reasons valid and supported by the record.

Page 1331

However, it reversed the third as invalid and found the fourth to be unsupported in the record. Id. Accordingly, the Fourth District reversed and remanded for a new sentencing hearing as required in Albritton v. State, 476 So.2d 158 (Fla.1985).

We recently have held that any departure sentence for probation violation is impermissible if it exceeds the one-cell increase permitted by the sentencing guidelines. Lambert, 545 So.2d at 842. Accord State v. Tuthill, 545 So.2d 850, 851 (Fla.1989); Franklin v. State, 545 So.2d 851, 852-53 (Fla.1989).

The rationale for our holding in Lambert is, first, that the guidelines do not permit departure based on an "offense" of which the defendant may eventually be acquitted. Lambert, 545 So.2d at 841 (citing Fla.R.Crim.P. 3.701(d)(11) & accompanying committee note). Second, even if the...

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174 practice notes
  • Maddox v. State, No. SC92805
    • United States
    • United States State Supreme Court of Florida
    • May 11, 2000
    ...and rules governing departure sentences should be addressed on direct appeal, even absent a contemporaneous objection. In Ree v. State, 565 So.2d 1329, 1332 (Fla.1990), this Court explained that strict adherence to the requirement of a written order was required because a "departure sentenc......
  • Lipscomb v. State, No. 89-213
    • United States
    • Court of Appeal of Florida (US)
    • January 31, 1991
    ...guidelines scoresheet, see e.g., the summary of the rationale of Lambert v. State, 545 So.2d 838 (Fla.1989), contained in Ree v. State, 565 So.2d 1329 (Fla.1990). 6 Admittedly there are other factors or reasons that have been held sufficient to justify a departure sentence that likewise fai......
  • Sanders v. State, No. 92-1302
    • United States
    • Court of Appeal of Florida (US)
    • May 28, 1993
    ...written reasons be given "contemporaneously" with pronouncing the sentence had not yet been promulgated. That came with Ree v. State, 565 So.2d 1329 (Fla.1990), which the supreme court said should not be retroactively applied. Thus, when this court remanded this cause to the trial court for......
  • Smith v. State, No. 76235
    • United States
    • United States State Supreme Court of Florida
    • April 2, 1992
    ...in the alternative giving Smith the option to withdraw her plea. The court then certified the question presented here. In Ree v. State, 565 So.2d 1329 (Fla.1990), modified, State v. Lyles, 576 So.2d 706 (Fla.1991), we held that trial courts must produce contemporaneous written reasons when ......
  • Request a trial to view additional results
174 cases
  • Maddox v. State, No. SC92805
    • United States
    • United States State Supreme Court of Florida
    • May 11, 2000
    ...and rules governing departure sentences should be addressed on direct appeal, even absent a contemporaneous objection. In Ree v. State, 565 So.2d 1329, 1332 (Fla.1990), this Court explained that strict adherence to the requirement of a written order was required because a "departure sentenc......
  • Lipscomb v. State, No. 89-213
    • United States
    • Court of Appeal of Florida (US)
    • January 31, 1991
    ...guidelines scoresheet, see e.g., the summary of the rationale of Lambert v. State, 545 So.2d 838 (Fla.1989), contained in Ree v. State, 565 So.2d 1329 (Fla.1990). 6 Admittedly there are other factors or reasons that have been held sufficient to justify a departure sentence that likewise fai......
  • Sanders v. State, No. 92-1302
    • United States
    • Court of Appeal of Florida (US)
    • May 28, 1993
    ...written reasons be given "contemporaneously" with pronouncing the sentence had not yet been promulgated. That came with Ree v. State, 565 So.2d 1329 (Fla.1990), which the supreme court said should not be retroactively applied. Thus, when this court remanded this cause to the trial court for......
  • Smith v. State, No. 76235
    • United States
    • United States State Supreme Court of Florida
    • April 2, 1992
    ...in the alternative giving Smith the option to withdraw her plea. The court then certified the question presented here. In Ree v. State, 565 So.2d 1329 (Fla.1990), modified, State v. Lyles, 576 So.2d 706 (Fla.1991), we held that trial courts must produce contemporaneous written reasons when ......
  • Request a trial to view additional results

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