FIDEL ELADIO DIAZ, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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The court held that the grounds asserted for discharge and replacement of counsel were insufficient. The court also held that the trial judge's retention of parole veto power without written reasons was erroneous.
The appellant was convicted of first-degree murder and related crimes. The trial judge retained jurisdiction to veto parole without providing written …
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SCHWARTZ, Chief Judge.
Rejecting the appellant’s sole claim of error in his conviction of first degree murder and related crimes, we conclude that the grounds he asserted in support of his second application for discharge and replacement of his court appointed counsel1 were patently insufficient to require the extended court inquiry the denial of which he now challenges. Johnson v. State, 560 So. 2d 1239 (Fla. 1st DCA 1990); Smelley v. State, 486 So. 2d 669 (Fla. 1st DCA 1986). The motion was therefore properly denied.
The trial judge retained jurisdiction to “veto” parole for one-third of the defendant’s sentence under section 947.-16(4)(d), Florida Statutes (1985), which, although since repealed, was in effect at the time of the offenses involved in this case. Because no written reasons were set out, the state agrees that the retention was erroneous, see Marshall v. State, 448 So. 2d 603 (Fla. 3d DCA 1984), and that portion of the sentence is therefore stricken. Under the circumstances of this case, including its age,2 the nature of the underlying sentence — life without parole for twenty-five years — and the likelihood that this statutory provision is no longer legally operative, 22 C.J.S. Criminal Law § 28 (1989) (“where an amendatory statute mitigates punishment and there is no saving clause, the amendment will operate retroactively so that the lighter punishment is involved”), we deem it inappropriate to remand for further proceedings on this point. See also Pope v. State, 561 So. 2d 554 (Fla. 1990) (written reasons required for departure from sentencing guidelines cannot be supplied after reversal).
Affirmed in part, reversed in part.
. A similar earlier motion had been granted.
. Diaz’s first conviction and sentence were reversed by this court in Diaz v. State, 492 So. 2d 1144 (Fla. 3d DCA 1986).
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Citator
Cited By
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State v. Arduengo, 609 So. 2d 651 (Fla. 2d DCA 1992)…rall term of years. Revision or deletion of the ancillary provision retaining jurisdiction to deny parole was essentially a ministerial function, and the presence of the defendant was not essential to perform that function. See, e.g., Diaz v. State, 563 So. 2d 199 (Fla. 3d DCA 1990). Moreover, the issue of Ar-duengo’s entitlement to full resentencing under guidelines has been raised in a previous appeal and decided against him. In that appeal the state contended, as it does now, that no “resentencing” occurre…
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Thomas v. State, 611 So. 2d 1324 (Fla. 3d DCA 1993)…red by statute is the appropriate remedy ... where the trial court fails to make required findings.”) (citations omitted), review denied, 392 So. 2d 1380 (Fla.1980). The defendant contends that this court announced a contrary rule in Diaz v. State, 563 So. 2d 199 (Fla. 3d DCA 1990). We disagree. In Diaz, unlike the present case, the sentencing court had not made the necessary findings. Id. at 200. The State conceded the point, which would ordinarily call for a remand. Id. (citing Marshall v. State, 448 So. 2…
Authorities Cited
- Pope v. State, 561 So. 2d 554 (Fla. 1990)
- Johnson v. State, 560 So. 2d 1239 (Fla. 1st DCA 1990)
- Smelley v. State, 486 So. 2d 669 (Fla. 1st DCA 1986)
- Percival Michael Marshall v. State, 448 So. 2d 603 (Fla. 3d DCA 1984)
- Fidel Eladio Diaz v. State, 492 So. 2d 1144 (Fla. 3d DCA 1986)