Weiss v. State, 97-2805
| Decision Date | 21 October 1998 |
| Docket Number | No. 97-2805,97-2805 |
| Citation | 720 So.2d 1113 |
| Parties | 23 Fla. L. Weekly D2380 Eric WEISS, Appellant, v. The STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Bennett H. Brummer, Public Defender, and Lisa Walsh, Assistant Public Defender, for appellant.
Robert A. Butterworth, Attorney General, and Roberta G. Mandel, Assistant Attorney General, for appellee.
Before SCHWARTZ, C.J., and JORGENSON and GODERICH, JJ.
The defendant appeals from criminal convictions and a ten-year upward departure sentence based on adverse jury verdicts for his involvement in a particularly brutal home invasion robbery in which, among other things, he terrorized a crippled man and a three-year-old child.
As the State concedes, the conviction for home invasion robbery must be vacated on double jeopardy grounds as subsumed by the "greater" conviction for burglary with an assault. See Elmy v. State, 667 So.2d 392 (Fla. 1st DCA 1995). We find no merit in the sole claim of trial error, see State v. DiGuilio, 491 So.2d 1129 (Fla.1986), however, and therefore affirm the remaining conviction.
In considering the defendant's two challenges to the sentence--neither of which was presented to the trial court--we first summarily reject his claim that the grounds assigned The separate, procedural, claim of sentencing error is also without merit. The trial judge announced the reasons for departure when the sentence was orally pronounced on August 19, 1997. The adjudication and sentence were filed with the clerk on August 26, 1997. For unknown reasons, however, the written bases for departure, which closely tracked those stated at the hearing, were not filed until August 29, 1997. Weiss argues that because this date was ten, rather than seven, days after the oral pronouncement of sentence, the departure was wholly invalid and must be set aside under section 921.0016(1)(c), Florida Statutes (1995), which provides that:
by the trial court 1 are legally insufficient for departure. See § 921.001(7), Fla. Stat. (1995); § 921.0016(3), Fla. Stat. (1995); Capers v. State, 678 So.2d 330 (Fla.1996); State v. Rousseau, 509 So.2d 281 (Fla.1987); Perez v. State, 604 So.2d 916 (Fla. 3d DCA 1992), review dismissed, 613 So.2d 9 (Fla.1992).
(c) A state prison sentence which varies upward or downward from the recommended guidelines prison sentence by more than 25 percent is a departure sentence and must be accompanied by a written statement delineating the reasons for the departure, filed within 7 days after the date of sentencing. A written transcription of orally stated reasons for departure from the guidelines at sentencing is permissible if it is filed by the court within 7 days after the date of sentencing.
§ 921.0016(1)(c), Fla.Stat. (1995). For two reasons, we disagree.
Initially, we conclude that "the date of sentencing" under section 921.0016 must, in context, be read to mean, not the oral pronouncement of sentence, but rather the filing of the written sentencing order. This conclusion is dictated by State v. Lyles, 576 So.2d 706 (Fla.1991), which holds that written reasons filed the day after an oral pronouncement complied with the then-existing requirement that the reasons be filed contemporaneously with the sentence. This was in part so because the very reason for the rule, as stated in Ree v. State, 565 So.2d 1329 (Fla.1990), was that:
If a sentence is entered and filed with the clerk on the day of sentencing, but the written reasons are delayed in being prepared and consequently are not filed on the same date, the decision to appeal may have to be made without the benefit of those written reasons because the time for appeal begins to run from the date the sentencing judgment is filed, not the written reasons.
Lyles, 576 So.2d at 708 (emphasis supplied). See generally Jordan v. State, --- So.2d ----, (Fla. 3d DCA Case no. 97-2002, opinion filed, September 16, 1998) [23 FLW D2130, D2132-33]. In this case, no Second, even if, arguendo, a technical error did occur, it may not be made the basis of reversal under the operative provisions of the Criminal Appeal Reform Act of 1996, section 924.051, Florida Statutes (Supp.1996), which requires both preservation and harm, which preceded the events in this case, and which therefore entirely controls. As this court specifically held in dealing with a similar claim of error in Jordan v. State, --- So.2d at ----, 23 FLW at D2130, the arguably late filing of departure reasons is not cognizable here both because it was not raised below, see Jordan, --- So.2d at ----, 23 FLW at D2131-33, and because, even if it had been, the meaningless procedural hiccup involved could constitute no more than non-prejudicial, harmless error. Jordan, --- So.2d at ----, 23 FLW at D2132-33. As to the latter ground, which we find particularly persuasive, we emphasize that the Reform Act has--we think, quite salutarily 3--rendered the general harmless error statute, section 924.33, Florida Statutes (1997); see § 59.041, Fla.Stat. (1997), unequivocally applicable to alleged sentencing miscues such as the one now urged upon us. 4 It was always difficult, at best, to discern a rational justification for setting aside an otherwise appropriate sentence just because a piece of paper was filed immaterially late. See Jordan, --- So.2d at ----, 23 FLW at D2132-33. The legislature has now expressly precluded such a result.
appeal from the sentence could be taken until the written order was filed with the clerk on August 26, 1997, see Owens v. State, 579 So.2d 311 (Fla. 1st DCA 1991), which we therefore conclude is the decisive date under the statute. 2 Because the written reasons for departure were filed only three days after that, there was no violation of section 921.0016(1)(c) at all.
Affirmed as modified.
---------------
THIS CAUSE was heard before this Court on August 19, 1997, on the State's motion to depart from sentencing guidelines. The Court makes the following findings:
1. This was a home-invasion robbery, in which the intruders threatened the victims--none of whom offered resistance--with death.
2. The degree of force used against victim Warren Hart was excessive and the victim was especially vulnerable due to both age and physical disability. Mr. Hart is a crippled older...
To continue reading
Request your trial
-
Maddox v. State
...See Butler v. State, 723 So.2d 865 (Fla. 1st DCA 1998), review granted, 735 So.2d 1283 (Fla.1999) (Case No. 94,614); Weiss v. State, 720 So.2d 1113, 1115 (Fla. 3d DCA 1998), review granted, 729 So.2d 396 (Fla.1999) (Case No. 94,460); Johnson v. State, 717 So.2d 1057 (Fla. 1st DCA 1998), rev......
-
Walker v. State
...(Supp.1996), and the issuance of the Florida Supreme Court's opinion in Maddox v. State, 760 So.2d 89 (Fla.2000). See Weiss v. State, 720 So.2d 1113 (Fla. 3d DCA 1998), affirmed, 761 So.2d 318 (Fla. 2000). In Maddox, the Florida Supreme Court held that the failure to file timely written dep......
-
Mendez v. State
...("Home invasion robbery is in essence an aggravated form of burglary, because it requires a burglary and robbery."); Weiss v. State, 720 So.2d 1113, 1113 (Fla. 3rd DCA 1998); Bowers v. State, 679 So.2d 340, 341 (Fla. 1st DCA 1996). Convictions for both offenses, arising from the same incide......
-
Esquivel v. State, 3D06-1200.
...813 So.2d 65 (Fla.2002); Maddox v. State, 760 So.2d 89 (Fla.2000); Beck v. State, 817 So.2d 858 (Fla. 5th DCA 2002); Weiss v. State, 720 So.2d 1113 (Fla. 3d DCA 1998), approved 761 So.2d 318 (Fla.2000.) The latter cases suggest that nonfundamental sentencing errors are subject to the harmle......