State v. Davis, 93-2835

• Decision Date: 12 July 1994
• Docket Number: No. 93-2835,93-2835
• Citation: 639 So.2d 1048
• Parties: 19 Fla. L. Weekly D1519 STATE of Florida, Appellant/Cross-Appellee, v. Darren Keith DAVIS, Appellee/Cross-Appellant.
• Court: Florida District Court of Appeals

Page 1048

639 So.2d 1048

19 Fla. L. Weekly D1519

STATE of Florida, Appellant/Cross-Appellee, v. Darren Keith DAVIS, Appellee/Cross-Appellant.

No. 93-2835.

District Court of Appeal of Florida First District.

July 12, 1994.

Robert A. Butterworth, Atty. Gen., James W. Rogers and Giselle Lylen Rivera, Asst. Attys. Gen., Tallahassee, for appellant/cross-appellee.

Leo A. Thomas of Levin, Middlebrooks, Mabie, Thomas, Mayes & Mitchell, P.A., Pensacola, for appellee/cross-appellant.

ERVIN, Judge.

The state appeals from an order vacating appellee's guideline departure sentence, arguing that the lower court erred in retroactively applying Ree v. State, 565 So.2d 1329 (Fla.1990), which requires a trial court to reduce its reasons for departure to writing at the time of sentencing. Davis cross-appeals, contending that the court erred at resentencing by imposing a three-year minimum mandatory term for use of a firearm during the commission of robbery, thereby making it a harsher sentence, contrary to North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969). We reverse as to the direct appeal and remand for further proceedings, but affirm as to the cross-appeal.

On April 6, 1989, Davis was sentenced to three concurrent life terms and one concurrent 30-year term. Eight days later, he filed a notice of appeal, and on May 6, 1989, during the pendency of the appeal, the trial court filed its written reasons for guideline departure. In his direct appeal, Davis raised errors allegedly transpiring during trial, but never raised the issue regarding the trial court's failure to reduce its departure reasons to writing at the time of sentencing. Before his appeal was terminated, the Florida Supreme Court decided Ree v. State, but limited its application to cases arising prospectively. Subsequent to the decision in Ree, the First District affirmed Davis's appeal, and mandate was issued on July 12, 1991. Davis v. State, 582 So.2d 695 (Fla. 1st DCA 1991).

Thereafter, the Florida Supreme Court issued several opinions relating to the types of cases that were affected by the prospective application of Ree. One in particular, Smith v. State, 598 So.2d 1063 (Fla.1992), commented that Ree applied to all cases not yet final when mandate issued after rehearing in Ree. ¹ As Davis's appeal had remained undecided at such time, Davis, on March 24, 1993, filed a motion to vacate and set aside sentence, pursuant to Florida Rules of Criminal Procedure 3.800 and/or 3.850, alleging the court's failure to reduce its departure reasons to writing during sentencing. He later filed an amended motion, arguing that the departure sentence was illegal, because the court had no jurisdiction to enter written reasons after he had filed his notice of appeal. In granting the motion to vacate, the trial court addressed only the point raised in the initial motion, stating that as a result of its disposition of the motion on the Ree ground, it was unnecessary to decide the jurisdictional issue. During the same proceeding, the court also imposed the minimum mandatory term of three years' imprisonment.

We agree with the state's argument that the lower court erroneously vacated the departure sentence based on Ree. On the same day the supreme court decided Smith v. State, which, as stated, held Ree applicable to all cases not final when mandate issued in Ree, it also decided Blair v. State, 598 So.2d 1068 (Fla.1992). In Blair, the court explained that Ree 's prospectivity requirement applied "to all cases not final where the issue was raised." Id. at 1069 (emphasis added). Although Davis's case on appeal was not final at the time mandate issued in Ree, his appeal raised no point...