THE STATE OF FLORIDA, APPELLANT,
v.
RHODA SMITH A/K/A RHODA MAGDALENE SMITH, APPELLEE
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The court held that the failure to provide contemporaneous written reasons for departure from sentencing guidelines requires remand for sentencing within the guidelines.
The defendant was sentenced on December 1, 1989, prior to the Pope v. State decision. The trial court did not provide contemporaneous written reasons …
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[*1101] PER CURIAM.
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 “that in Barbera v. State, 505 So. 2d 413 (Fla.1987), we remanded for resentencing to permit the trial court to specify written reasons for a departure sentence. We recede from Barbera to the extent that it is inconsistent with this opinion.” 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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Rhoda Smith v. State, 598 So. 2d 1063 (Fla. 1992)…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 importance: Should Pope v. State [, 561 So. 2d 554 (Fla.1990),] be applied retrospectively to sentences imposed prior to April 26, 1990? Smith, 5…
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State v. Whipple, 592 So. 2d 1101 (Fla. 3d DCA 1990)…nt would receive a sentence of only two days in the county jail. If this is the case, the defendant must be afforded 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 retroactive application. In accord with this court’s decision in Smith, we apply Pope retroactively and certify…
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Cloe v. State, 613 So. 2d 70 (Fla. 4th DCA 1993)…an aggravated sentence, Appellant’s drug use, would support a downward deviation but not an aggravation. Cf. Barbera 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 an upward departure. Winters v. State, 522 So. 2d 816 (Fla.1988); Whitehead v. State, 498 So. 2d 863 (…
Authorities Cited
- Pope v. State, 561 So. 2d 554 (Fla. 1990)
- Barbera v. State, 505 So. 2d 413 (Fla. 1987)
- THE Florida BAR v. Winter, 478 So. 2d 51 (Fla. 1985)
- Oden v. State, 463 So. 2d 313 (Fla. 1st DCA 1984)
- State v. Eldrick Gavins, 555 So. 2d 933 (Fla. 3d DCA 1990)
- MOE v. State, 554 So. 2d 675 (Fla. 3d DCA 1990)