State v. Amodeo, 99-1095.
| Decision Date | 13 December 1999 |
| Docket Number | No. 99-1095.,99-1095. |
| Citation | 750 So.2d 664 |
| Parties | STATE of Florida, Appellant, v. Adam Edward AMODEO, Appellee. |
| Court | Florida District Court of Appeals |
Robert A. Butterworth, Attorney General, Tallahassee, and Belle B. Schumann, Assistant Attorney General, Daytona Beach, for Appellant.
James B. Gibson, Public Defender, and Noel A. Pelella, Assistant Public Defender, Daytona Beach, for Appellee.
The state appeals from a downward departure sentence imposed on Amodeo in two criminal cases: case number 98-1283, burglary of a structure and of a conveyance, plus two counts of theft; and case number 98-2324, possession of contraband in a county detention facility, and in four violation of probation cases. His sentencing score totaled 78.7 points, equivalent to a sentencing range of 38.025 to 63.375 months in prison. The trial judge sentenced Amodeo to thirty months in prison, followed by two years probation, and $1,263.76 in restitution. We reverse.
At the hearing below, Amodeo pled guilty to the criminal offenses and no contest to four violation of probation charges, which were then used in computing his sentencing score. The state had earlier offered Amodeo a plea bargain of 39 months in prison, two years probation, and restitution. The trial judge stated he thought a thirty-month sentence was "fair" when coupled with probation and restitution.
The state attorney objected: "Judge, and of course that downward departures sentence is gonna be over the State's—" The trial judge interrupted, saying: The hearing was abruptly adjourned. The trial judge furnished no written reasons for departing downward from the guidelines.1
The state argues on appeal that the reasons given orally by the sentencing judge are legally insufficient and are not supported by the record. Section 921.0016 provides a list of mitigating circumstances which can justify a downward departure,2 and this list is not exclusive. State v. Turro, 724 So.2d 1216 (Fla. 3d DCA 1998). We do not agree with the state that the reasons given for the downward departure here would never be legally sufficient in a proper case.3
We do agree, however, that the slender record provided to us on appeal utterly fails to support the reasons given for the departure sentence. See State v. Dunning, 742 So.2d 378 (Fla. 2d DCA 1999). No testimony was given under oath by anyone. It defies understanding how the judge could have concluded that Amodeo was cooperative,4 or remorseful.5
Even after Amodeo tendered his open guilty plea, he denied he was guilty of the substantive offenses. He claimed that two boys, ages 10 and 12, had committed the burglary and theft crimes and, although he was in the area with them, "I did not commit this crime here."
With regard to the possession of contraband charge, Amodeo told the court that an officer had planted a "shank" in his cell while he was absent. He said the same officer had treated him badly and that they did not get along. He also reported other abuses of prisoners at the county jail, sufficient to cause the trial judge to inquire of the state attorney whether there was truth to Amodeo's accusations.
Further, there was no testimony or showing of the need for restitution by the burglary victims, or that Amodeo would be able to provide same, if spared a longer guidelines sentence. Compare Banks v. State, 732 So.2d 1065 (Fla.1999).
The major difficulty is that the state attorney, at the sentencing hearing, did not clearly raise this ground as an objection to the oral reasons given by the trial judge. Under section 924.051, an appeal may not be taken unless prejudicial error is alleged and is properly preserved or if not properly preserved, would constitute fundamental error. To be preserved, an issue must be timely raised and ruled on by the trial court. The issue must be sufficiently precise that it fairly apprises the trial court of the relief sought and the grounds for the objection. 924.051(1)(b); State v. Mae, 706 So.2d 350 (Fla. 2d DCA 1998). See also State v. Baccari, 730 So.2d 806 (Fla. 4th DCA 1999) ().
We expect the State to object and to give specific reasons contemporaneously in order to preserve issues for appellate review. However, here the sentencing hearing was conducted in such a rushed atmosphere and in such a cursory fashion, that it appears the trial judge had predetermined to depart downwards, even though the defense provided no basis for doing so. The trial judge also abruptly cut off the State Attorney's effort to make an objection, thereby jeopardizing the state's ability to appeal this issue. In these circumstances, we will permit the state to raise this issue.
Accordingly, we vacate the sentence and remand for resentencing within the guidelines.
Sentence VACATED; REMANDED for resentencing pursuant to the guidelines.
1. Failure to provide written reasons justifying a downward departure sentence is not fatal if the trial judge orally pronounces valid reasons for departure at the time of sentencing. Pease v. State, 712 So.2d 374 (Fla.1997).
2. 921.0016. Recommended sentences; departure sentences; aggravating and mitigating circumstances
(1)(a) The recommended guidelines sentence provided by the total sentence points is assumed to be appropriate for the offender.
(b) A trial court judge may impose a state prison sentence which varies upward or downward by up to, and including, 25 percent from the recommended guidelines state prison sentence without issuing a written statement delineating the reasons for the variation.
(c) A state prison sentence which varies upward or downward from the recommended guidelines prison sentence by more than 25 percent...
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Roberts v. State
...argument below that the hearsay statements were not reliable because they were the product of improper influence.In State v. Amodeo, 750 So. 2d 664 (Fla. 5th DCA 1999), the Fifth District permitted the State to raise an issue that was not 310 So.3d 442 articulated below because the "hearing......
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State v. Scott, 2D03-2605.
...Of course, where no evidence is submitted to support the departure sentence, the statutory standard is not met. See State v. Amodeo, 750 So.2d 664, 666 (Fla. 5th DCA 1999) (holding that record "utterly fail[ed] to support the reasons given for the departure sentence" where "[n]o testimony w......
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State v. Clay, 5D00-1357.
...precise that it fairly appraises the trial court of the relief sought and the grounds for the objection." State v. Amodeo, 750 So.2d 664, 667 (Fla. 5th DCA 1999). The transcript of the sentencing hearing reveals that the State specifically argued to the trial judge that the grounds advanced......
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State v. Redden, 5D14–2894.
...had predetermined to depart downwards,” a general objection from the State to the downward departure is sufficient. State v. Amodeo, 750 So.2d 664, 667 (Fla. 5th DCA 1999) ; see also State v. Colbert, 968 So.2d 1043, 1045 (Fla. 5th DCA 2007) (finding that the State's objection, consisting s......