CLIFF ANTHONY SMITH, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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A one-cell upward departure sentence requires written reasons if the offense occurred before July 1, 1988.
Defendant was sentenced for burglary and robbery convictions with a one-cell upward departure without written reasons. The offenses occurred in Januar…
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LEVY, Judge.
At the time that the defendant was sentenced, on September 1, 1989, the trial court departed upward one cell when sentencing the defendant in connection with the burglary and robbery convictions. The judge did not give written reasons for the upward departure of one cell, apparently believing that it was unnecessary to give written reasons when imposing only a one cell departure, which the judge believed placed the sentence in the “permitted range”.
However, the offenses involved in this case were committed between January 17th and January 21st, 1988. As the State correctly acknowledges, the “permitted range” concept, which authorizes a one cell departure without the necessity of giving written reasons, does not apply to offenses committed prior to July 1, 1988. Accordingly, this cause must be remanded so that the appellant can be re-sentenced in connection with the burglary and robbery convictions.1 Since the record in this case clearly supports the State’s argument that the trial court did not recognize that it was improperly imposing a departure sentence where written reasons were required, the trial judge in the instant case must be allowed to consider on remand whether the one cell departure is appropriate and, if so, to set forth the valid reason for departure. See State v. Betancourt, 552 So. 2d 1107 (Fla.1989).
All other aspects of this case, including the conviction and sentence entered in connection with the first-degree murder charge, are affirmed.
Affirmed in part, reversed in part, and remanded with directions.
. The appellant does not contest the judgment or sentence entered in connection with the first-degree murder conviction.
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Citator
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Wilson v. State, 608 So. 2d 842 (Fla. 3d DCA 1992)…sentencing the defendant to a departure sentence without providing written reasons for the departure where the crime was committed prior to July 1, 1988, the effective date of the statute approving the “permitted range” concept. See Smith v. State, 582 So. 2d 117 (Fla. 3d DCA 1991). However, since the trial court believed that the one cell departure was allowable as being within the defendant’s permitted range, the trial court must be allowed to consider, on remand, whether a departure sentence is appropriat…
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DeANGELIS v. State, 605 So. 2d 175 (Fla. 4th DCA 1992)…ge with a one cell upward departure without written reasons, since the offense with which appellant was charged was committed prior to the effective date of Chapter 88-131, Laws of Florida, which permitted the one cell departure. See Smith v. State, 582 So. 2d 117 (Fla. 3d DCA 1991). Should appellant be convicted on retrial, he must be sentenced within the guidelines, or in the alternative, the court must provide written reasons for departure. Id.; see also Merritt v. State, 567 So. 2d 1031 (Fla. 4th DCA 1990…
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Basil W. Housen v. State, 639 So. 2d 194 (Fla. 4th DCA 1994)…and two years probation. The “permitted range” concept does not apply to offenses committed prior to its effective date of July 1, 1988. Sequoia v. State, 624 So. 2d 381 (Fla. 4th DCA 1993), rev. denied, 634 So. 2d 626 (Fla.1994); Smith v. State, 582 So. 2d 117 (Fla. 3d DCA 1991). Therefore, appellant was incorrectly sentenced. Appellee does not contest this conclusion. Since the trial court appears to have been unaware that it was imposing a departure sentence, it must be allowed to consider on remand w…
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- State v. Betancourt, 552 So. 2d 1107 (Fla. 1989)