State v. Smith
| Citation | 592 So.2d 1100 |
| Decision Date | 05 June 1990 |
| Docket Number | No. 89-3012,89-3012 |
| Parties | The STATE of Florida, Appellant, v. Rhoda SMITH a/k/a Rhoda Magdalene Smith, Appellee. 592 So.2d 1100, 15 Fla. L. Week. D1520 |
| Court | Court of Appeal of Florida (US) |
Robert A. Butterworth, Atty. Gen., and Monique T. Befeler, Asst. Atty. Gen., for appellant.
Bennett H. Brummer, Public Defender, and Marti Rothenberg, Asst. Public Defender, for appellee.
Before COPE, GERSTEN and GODERICH, JJ.
The trial court's failure to provide contemporaneous written reasons for departure from the sentencing guidelines requires that this cause be remanded for imposition of a sentence within the guidelines with no possibility of departure from the guidelines. See Pope v. State of Florida, 561 So.2d 554 (Fla.1990). Upon remand, the trial court must sentence the defendant, Rhoda Smith, within the guidelines. However, if the defendant entered her plea of guilty to the child abuse charge as a result of a plea agreement, the defendant should be allowed to withdraw her guilty plea and proceed to trial.
Although we follow Pope, we note that the sentencing at issue in the present case occurred on December 1, 1989, prior to the supreme court's decision in Pope. Pope acknowledges Pope, 561 So.2d at 556. The opinion also acknowledges that the practice in some districts, including this one, has been to remand in order for the trial court to reduce its oral reasons to a written order, id.; see also, e.g., State v. Evans, 554 So.2d 675 (Fla.App.1990); State v. Gavins, 555 So.2d 933 (Fla.App.1990); Oden v. State, 463 So.2d 313 (Fla. 1st DCA 1984), aff'd 478 So.2d 51 (Fla.1985), and Pope effectively overrules those decisions. Although we follow Pope as announced, we certify to the Florida Supreme Court the following question of great public importance:
SHOULD POPE V. STATE BE APPLIED RETROACTIVELY TO SENTENCES IMPOSED PRIOR TO APRIL 26, 1990?
We vacate the current sentence and remand for proceedings consistent herewith.
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Smith v. State
...Atty. Gen., and Monique T. Befeler, Asst. Atty. Gen., Miami, for respondent. BARKETT, Justice. We have for review State v. Smith, 592 So.2d 1100 (Fla. 3d DCA 1990), in which the district court certified the following as a question of great public Should Pope v. State [, 561 So.2d 554 (Fla.1......
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Cloe v. State, 90-3154
...v. State, 505 So.2d 413 (Fla.1987), receded from on other grounds by, Pope v. State, 561 So.2d 554 (Fla.1990) and State v. Smith, 592 So.2d 1100 (Fla. 3d DCA1990). Further, under the statute in effect on September 1988, the date of the offense, habitualization is not a sufficient ground for......
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State v. Whipple, 89-2606
...an opportunity to withdraw his plea and proceed to trial. We recognize that in the instant case, as in the case of State v. Smith, 592 So.2d 1100 (Fla. 3d DCA 1990), the trial judge sentenced the defendant prior to the issuance of the Pope decision, which raises the issue of Pope's retroact......