State v. Jones, 92-1594
| Decision Date | 26 May 1993 |
| Docket Number | No. 92-1594,92-1594 |
| Parties | 18 Fla. L. Weekly D1316 STATE of Florida, Appellant, v. Hazel JONES, Appellee. |
| Court | Florida District Court of Appeals |
Robert A. Butterworth, Atty. Gen., Tallahassee, and Dawn S. Wynn, Asst. Atty. Gen., West Palm Beach, for appellant.
Richard L. Jorandby, Public Defender, and Anthony Calvello, Asst. Public Defender, West Palm Beach, for appellee.
In October 1991, defendant was before the court for sentencing on charges relating to worthless checks. One set of possible charges from the events that had led to her arrest was being held by the State in order to have the FBI do a handwriting analysis. But for the state's unreadiness to proceed on them, the October 1991 sentencing would have included these charges; and the additional counts would have resulted in a contemporaneous sentence with the 5-year prison sentence she was given then.
Several months later, in May 1992 to be exact, the state proceeded on the additional charges (grand theft and obtaining property by worthless check), and the defendant agreed to plead no contest. As it had happened by then, however, defendant had already been released from state prison on the 5-years incarceration and was serving the balance of her sentence on "controlled release." Her guidelines scoresheet for these additional charges now, of course, reflected the 1991 convictions and showed a permitted sentence range of 9-22 years.
The trial judge expressly found that if these additional charges had been processed in the normal course of events, they would also have been disposed of at the October 1991 plea and sentencing, and any sentence he would then have imposed would have been concurrent with the 5-year sentence given. Accordingly, he sentenced her to 1-year probation to run concurrent with her controlled release. Unfortunately, even though all of this appears without contradiction from the records and transcript of the sentencing hearing, none of it is stated on the sentencing order.
In other words, the trial judge has departed downward from the guidelines without timely, written reasons--although we do know that he had a good reason for doing so. 1 The state thus argues on appeal from the sentence that, under Pope v. State, 561 So.2d 554 (Fla.1990), we must reverse and remand for the purpose of resentencing within the guidelines.
We do not understand why the remedy for the trial court's failure to enter contemporaneous written reasons for guidelines leniency, i.e. a sentence less severe than the minimum prescribed by the guidelines, is to resentence within the guidelines unless the defendant asks to have his plea vacated. The defect is attributable to no conduct, action or inaction by the defendant. The remedy punishes the defendant for a trial judge's mistake. We wonder why the remedy isn't simply to remand to the trial judge for the entry of the written reasons.
We distinguish this, of course, from the converse situation where the trial court imposes more severe punishment than the guidelines maximum and within the penalty prescribed by the law violated, but has failed to file seasonably a written explanation of the reasons for the departure. The idea underlying a reversal of that sentence with a remand for resentencing within the guidelines is simply an application of the strict construction which must be applied to all penal statutes. See Sec. 775.021, Fla.Stat. (1991). A trial court can sentence more harshly than the guidelines allow, but only if on sentencing day the judge strictly complies with the letter of the guidelines...
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