State v. Evans, 86-1039
| Decision Date | 12 March 1987 |
| Docket Number | No. 86-1039,86-1039 |
| Citation | 12 Fla. L. Weekly 758,503 So.2d 985 |
| Parties | 12 Fla. L. Weekly 758 STATE of Florida, Appellant, v. Robert EVANS, Appellee. |
| Court | Florida District Court of Appeals |
Robert A. Butterworth, Atty. Gen., Tallahassee, and W. Brian Bayly, Asst. Atty. Gen., Daytona Beach, for appellant.
James B. Gibson, Public Defender, and James R. Wulchak, Asst. Public Defender, Daytona Beach, for appellee.
The state appeals from a robbery sentence. Appellee was sentenced under the Youthful Offender Act. Although his guidelines scoresheet reflected a total of ninety-three points yielding a presumptive three and one-half to four and one-half year imprisonment, appellant was sentenced to a period of four years community control with a condition that he serve 364 days in the county jail.
Because community control is considered to be less onerous than imprisonment, the state appeals the sentence on the grounds that the court failed to provide written reasons for its downward departure from the recommended guideline sentence. See State v. Esbenshade, 493 So.2d 487 (Fla. 2d DCA 1986). The sentencing judge refused to give written reasons because, he said, the Youthful Offender Act "... took itself out of the guidelines, having been imposed and adopted after the guidelines statute ..." He said the youthful offender statute forbids an upward departure but says nothing about a downward one, so the legislature must have meant to permit downward departure. The pertinent statute is section 958.04(3):
The provisions of this section shall not be used to impose a greater sentence than the maximum recommended range as established by statewide sentencing guidelines pursuant to s. 921.001 unless clear and convincing reasons are explained in writing by the trial court judge. A sentence imposed outside of such guidelines shall be subject to appeal by the defendant pursuant to s. 924.06.
The statute does indeed refer only to upward departures and the defendant's right to appeal, with no mention of downward departures or a state right to appeal. The question then is whether the statutory maxim expressio unius est exclusio alterius (the inclusion of one thing implies the exclusion of another) applies to this statute; thus whether the legislature meant to allow trial judges to depart downwards in these cases for any reason--and to give no reason at all.
In acknowledging that section 958.04(3) does not address a downward departure, the trial court is...
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State v. Weston
...1 The state admits that this is the case here.2 We recognize and certify that this result is directly contrary to State v. Evans, 503 So.2d 985 (Fla. 5th DCA 1987), with which we respectfully disagree.3 Because of the likely review of our holding and in the interest of a complete adjudicati......
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State v. Diers
...for respondent. McDONALD, Justice. We review State v. Diers, 517 So.2d 788 (Fla. 2d DCA 1988), because of conflict with State v. Evans, 503 So.2d 985 (Fla. 5th DCA 1987). We have jurisdiction pursuant to article V, section 3(b)(3) of the state constitution. Diers held that the state could n......
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State v. Diers, 87-1172
...v. Odom, 514 So.2d 424 (Fla. 3d DCA 1987), certify that our decision conflicts with the fifth district's opinion in State v. Evans, 503 So.2d 985 (Fla. 5th DCA 1987), which allowed a state appeal from a Y.O.A. sentence because the judge had failed to explain the guidelines departure in Our ......
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State v. Odom, 86-2880
...v. Weston, 510 So.2d 1001 (Fla. 3d DCA 1987), we dismiss the appeal and, as in Weston, certify a direct conflict with State v. Evans, 503 So.2d 985 (Fla. 5th DCA 1987). ...