Ree v. State
| Decision Date | 19 July 1990 |
| Docket Number | No. 71424,71424 |
| Citation | 565 So.2d 1329 |
| Parties | 15 Fla. L. Weekly S395 James REE, Petitioner, v. STATE of Florida, Respondent. |
| Court | Florida Supreme Court |
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.
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?
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. 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 (). Second, even if the defendant has been convicted of the offense, departure is equally impermissible because it constitutes double-dipping. The trial court is imposing a departure sentence for probation violation; simultaneously, the guidelines automatically aggravate the sentence for the separate offense that constituted the violation. Id. Finally, violation of probation is not a substantive offense in Florida and cannot be the vehicle for a departure under the basic policies of the guidelines. Id. at 841-42. Thus, the trial court erred in imposing any departure sentence greater than the one-cell upward increase permitted by Lambert.
We turn now to the certified question. Section 921.001(6), Florida Statutes (1987), provides:
The sentencing guidelines shall provide that any sentences imposed outside the range recommended by the guidelines be explained in writing by the trial court judge.
(Emphasis added.) This basic policy has been implemented by rule of this Court. Florida Rule of Criminal Procedure 3.701(b)(6) states in pertinent part that
departures from the presumptive sentences established in the guidelines shall be articulated in writing ....
(Emphasis added.) Florida Rule of Criminal Procedure 3.701(d)(11) states in pertinent part:
Any sentence outside of the permitted guideline range must be accompanied by a written statement delineating the reasons for departure.
(Emphasis added.)
(Emphasis added.) We conclude that Jackson and Oden compel us to answer the certified question in the affirmative and require that written reasons be issued at the time of sentencing. This holding, however, shall only be applied prospectively.
We acknowledge the concerns expressed by the court below when it agreed with Judge Sharp's special concurrence in Elkins v. State, 489 So.2d 1222 (Fla. 5th DCA 1986). See Ree, 512 So.2d at 1086. Judge Sharp had noted in Elkins:
I am also concerned about the practicality and fairness of requiring the trial judge to produce "contemporaneous" written reasons for a departure sentence at the sentencing hearing. That obviously means the sentencing judge must prepare the written reasons for departing in advance of the...
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