THE STATE OF FLORIDA, APPELLANT,
v.
GONZALO CANOVAS TURRO, APPELLEE
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
The court held that the trial court's stated reason for downward departure from sentencing guidelines was insufficient due to a lack of meaningful medical evidence.
[1] A delay in filing written reasons for a downward departure sentence is harmless error when the transcript of the plea colloquy adequately sets forth the reasons and the S…
[2] A downward departure sentence based on a defendant's physical condition requires competent medical evidence and documentation of a physical disability.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligenceThe defendant pleaded guilty and the trial court imposed a downward departure sentence based on the defendant's alleged physical condition, citing pri…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Competent Medical Evidence cases and more on FLexlaw
PER CURIAM.
The State appeals the imposition of a downward departure sentence. We reverse.
In October 1997, defendant was charged with grand theft and burglary of an unoccupied conveyance in connection with a September 10, 1997, offense. In November, 1997, the State filed a notice of intent to seek a habitual offender sentence based on defendant’s 18 prior felony convictions. A sentencing scoresheet prepared for defendant showed a total of 133.2 points with a minimum sentence of 6.5 years and a maximum sentence of 10.9 years.
In February 1998, over the objection of the State, defendant entered into a plea of guilty under an offer made by the court for a sentence of time served. At the time of the plea the trial court orally announced it was departing from the sentencing guidelines because defendant “is in a physical condition that he would be unable to finish or comply with any term of imprisonment given by this Court, other than what has been given here today.” The only evidence offered as to the forty-nine-year-old defendant’s condition was his statement that he had previously had two heart attacks, two heart catheterizations, and was on heart medication, which he could not name. No written reasons for the downward departure sentence were ever filed. The State appeals the downward departure sentence.
The State first argues that we must reverse solely on the basis of the trial court’s failure to timely file its written reasons for the sentence as required by section 921.0016(l)(c), Florida Statutes (1997). We reject that argument on authority of Weiss v. State, 720 So. 2d 1113 (Fla. 3d DCA 1998) and Jordan v. State, — So. 2d —, —, 1998 WL 621355, 23 Fla. L. Weekly D2130, D2131 (Fla. 3d DCA Sept.16, 1998). There is a transcript of the plea colloquy and the trial court’s reasons for its actions are adequately set forth therein.
It is true that the transcript was filed more than seven days after sentencing, see § 921.0016(l)(c), Fla. Stat., but there is no indication that the State was harmed in any way by the delay. The State filed a timely appeal, and in the appeal challenges the departure reasons set forth in the transcript. The delay in filing must be viewed as harmless error. See Weiss, 720 So. 2d at 1115. The Criminal Appeal Reform Act
has — we think, quite salutarily — 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. 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. The legislature has now expressly precluded such a result.
Weiss, 720 So. 2d at 1115, 23 Fla. L. Weekly at D2381 (citation omitted).
The State next argues that the downward departure reason is insufficient. On this record, we agree.1
The sentencing guidelines allow downward departure where, among other things, “[t]he defendant requires specialized treatment for a mental disorder that is unrelated to substance abuse or addiction or for a physical disability, and the defendant is amenable to treatment.” § 921.0016(4)(d), Fla. Stat. (1997). The list of statutory departure reasons is not exclusive, see id. § 921.0016(4), so conceivably other departures on the basis of physical condition might be permissible if supported by the record.
Here, however, there is no meaningful medical evidence in the record. The record only shows defendant’s claim that at some unspecified time in the past he suffered two heart attacks and underwent two heart cath-eterizations. There is no medical documentation of this. There is no competent medical evidence of defendant’s condition, past or present, nor is there documentation of physical disability. We also note that the record is completely silent on whether defendant’s claimed medical problems emerged after his current arrest or whether the conditions occurred at some previous point in defendant’s criminal history.
We reverse the downward departure sentence and remand with leave for the defendant to withdraw his plea. See State v. Alvarez, 709 So. 2d 194 (Fla. 3d DCA 1998). Our ruling is without prejudice to the trial court to revisit defendant’s medical condition and the issue of downward departure on a more fully developed record. See State v. Bostick, 715 So. 2d 298, 299 (Fla. 4th DCA 1998).
Reversed and remanded.
. Defendant contends that the State did not make an adequate objection to preserve this issue for appellate review. We conclude that the objection was sufficient. The transcript reflects that the parties went on and off the record several times during the plea negotiation. Ultimately, the court conducted the plea colloquy on the record and accepted the plea. When the court announced the downward departure sentence, the court "note[d] the objection of the State.” Because the trial court itself acknowledged the previously-made objection, we think the point is sufficiently preserved.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
State v. Tyrrell, 807 So. 2d 122 (Fla. 5th DCA 2002)…of statutory departure reasons is not exclusive, so departures based on reasons not delineated in section 921.0026, which are supported by the record, may be permissible. See State v. Randall, 746 So. 2d 550, 552 (Fla. 5th DCA 1999); State v. Turro, 724 So. 2d 1216, 1217 (Fla. 3d DCA 1998). We are mindful, however, that under the Criminal Punishment Code, “[t]he primary purpose of sentencing is to punish the offender.” § 921.002(l)(b), Fla. Stat. (1999). REMORSE Turning now to the grounds utilized by the tri…
-
State v. Randall, 746 So. 2d 550 (Fla. 5th DCA 1999)…r, and the criminal acts constitute isolated incidents for which the defendant has shown remorse. § 921.0026(2)(i) and (j), Fla. Stat.(1999). However, this list of statutory departure reasons is not exclusive. § 921.0026(1). See also State v. Turro, 724 So. 2d 1216 (Fla. 3d DCA 1998). In addition, even if some of the court’s stated reasons are insufficient, only one valid reason is necessary to sustain a departure. § 921.002(3). See also Paul v. State, 722 So. 2d 224 (Fla. 3d DCA 1998); State v. Whiting, 711 S…
-
State v. Paulk, 813 So. 2d 152 (Fla. 3d DCA 2002)…he sentence. The judge noted that despite being informed that the State was going to appeal, he was still going to enter the downward departure. We think the State’s objection to the departure sentence was sufficiently preserved. See State v. Turro, 724 So. 2d 1216, 1217 n. 1 (Fla. 3d DCA 1998)(where transcript. reflects the parties went off the record several times during plea negotiations and court subsequently acknowledged the objection of the State, issue was preserved for appellate review). The State arg…
Previewing 3 of 8 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Weiss v. State, 720 So. 2d 1113 (Fla. 3d DCA 1998)
- State v. Bostick, 715 So. 2d 298 (Fla. 4th DCA 1998)
- Mullins v. State, 709 So. 2d 194 (Fla. 3d DCA 1998)