Robinson v. State

Decision Date29 November 1990
Docket NumberNo. 75792,75792
Citation571 So.2d 429
Parties15 Fla. L. Weekly S612 Virgil ROBINSON, Petitioner, v. STATE of Florida, Respondent.
CourtFlorida Supreme Court

Bennett H. Brummer, Public Defender, and Robert Kalter, Asst. Public Defender, Miami, for petitioner.

Robert A. Butterworth, Atty. Gen., and Patricia Ann Ash, Asst. Atty. Gen., Miami, for respondent.

EHRLICH, Justice.

We have for review Robinson v. State, 557 So.2d 109 (Fla. 3d DCA 1990), which expressly and directly conflicts with the decision of this Court in Pope v. State, 561 So.2d 554 (Fla.1990). We have jurisdiction. Art. V, § 3(b)(3), Fla. Const.

A jury convicted Robinson of two counts of resisting arrest with violence, one count of battery on a law enforcement officer, and one count of simple battery. The trial court ordered a sixteen-year sentence rather than the recommended guideline sentence of twelve-to-thirty months, but provided no accompanying written statement of the reasons for departure as required by Florida Rule of Criminal Procedure Rule 3.701(d)(11). Instead, it orally gave two reasons for the ordered departure sentence. On appeal, the district court vacated the sentence but observed that the lower court could depart from the guidelines by written order. Robinson v. State, 541 So.2d 1261 (Fla. 3d DCA 1989).

Upon remand, the trial court resentenced Robinson to the same sentence originally ordered. Once again, no written reasons were contemporaneously given to support departure, although some seven months later written reasons for departure were recorded. Based upon inspection of the record together with the state's confession of error, the district court concluded the trial court erred by not contemporaneously reducing to writing the reasons for departure. Based upon this conclusion, the district court vacated Robinson's sentence and remanded to the trial court for resentencing. The district court gave the trial court the option of resentencing Robinson within the guidelines or departing from the guidelines if such departure was supported with contemporaneous written findings and reasons.

Robinson contends that the portion of the district court's opinion which would permit the trial court to again depart from the recommended guideline sentence conflicts with the decision of this Court in Pope v. State, 561 So.2d 554 (Fla.1990). We agree. In Pope, we held that "when an appellate court reverses a departure sentence because there were no written reasons, the court...

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3 cases
  • Coley v. State
    • United States
    • Florida District Court of Appeals
    • March 16, 1993
    ...total sentence cannot exceed the sentencing guidelines without providing contemporaneous written reasons for a departure. Robinson v. State, 571 So.2d 429 (Fla.1990). VII. CONCLUSION I, along with two juries, do not believe that this child-victim consented to what the Bullington majority ca......
  • Smith v. State
    • United States
    • Florida Supreme Court
    • April 2, 1992
    ...written reasons had been given to justify the original departure sentence. Likewise, we applied Pope retrospectively in Robinson v. State, 571 So.2d 429 (Fla.1990). The inconsistent application of retrospectivity has much precedent. As the United States Supreme Court observed, this historic......
  • Limback v. State, 90-2032
    • United States
    • Florida District Court of Appeals
    • January 3, 1992
    ...supreme court has decreed that such cannot be done. On remand, there is no possibility of departure from the guidelines. Robinson v. State, 571 So.2d 429 (Fla.1990). ANSTEAD, J., and FRANK, RICHARD H., Associate Judge, concur. ...

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