Opinion
No. 92-2984.
October 21, 1994. Order Certifying Question on Grant of Rehearing December 16, 1994.
Appeal from the Circuit Court, Hernando County, John W. Springstead, J.
O.J. Harp, III, Brooksville, for appellant.
Robert A. Butterworth, Atty. Gen., Tallahassee and Kellie A. Nielan, Asst. Atty. Gen., Daytona Beach, for appellee.
We affirm Pamela Y. Colbert's convictions for murder in the first degree, kidnapping, and robbery, without discussion. However, because the judge imposed a consecutive life sentence as a departure sentence without filing contemporaneous written reasons, we vacate the sentence imposed for kidnapping and remand for resentencing.
§ 782.04(1)(a), Fla. Stat. (1991).
§ 787.01(1), Fla. Stat. (1991).
§ 812.13(2)(a), Fla. Stat. (1991).
Colbert was sentenced on 23 November 1992. The judge orally imposed a departure sentence for the offense of kidnapping. Colbert was sentenced to consecutive life imprisonment. During the sentencing, the trial judge orally pronounced departure reasons for his sentence, but the judge did not sign written reasons until 1 December 1992. They were not filed with the clerk of the court until 2 December 1992. The Florida Supreme Court, in Ree v. State, 565 So.2d 1329 (Fla. 1990), held that upward departure sentences must be accompanied by contemporaneous written reasons. If the trial judge wants to impose a harsher sentence than allowed by the sentencing guidelines, the judge must strictly comply with the guideline departure provisions. See § 921.001(5)-(8), Fla. Stat. (1991); Fla.R.Crim.P. 3.701(d)(11). In this case, the trial judge did not comply; he waited eight days to file his written reasons. This delay is reversible error. See Mock v. State, 625 So.2d 1335 (Fla. 5th DCA 1993) (citing State v. Lyles, 576 So.2d 706 (Fla. 1991)); Williams v. State, 607 So.2d 478, 479 (Fla. 1st DCA 1992) (written reasons filed three days after sentencing is reversible error).
We vacate the sentence for kidnapping and remand for resentencing within the guidelines with no possibility of a departure. Frazier v. State, 633 So.2d 1206 (Fla. 5th DCA 1994) (citing Pope v. State, 561 So.2d 554 (Fla. 1990)). The trial court must give Colbert credit for all time served as of the date of final resentencing. See Brown v. State, 584 So.2d 209 (Fla. 1st DCA 1991).
Convictions AFFIRMED; sentencing for kidnapping VACATED; REMANDED for resentencing.
GOSHORN, J., concurs.
HARRIS, C.J., concurs and concurs specially, with opinion in which GOSHORN, J., concurs.
ON MOTION FOR REHEARING/REQUEST FOR CERTIFICATION
We grant rehearing for the sole purpose of certifying the following question to the supreme court as being one of great public importance:
IN LIGHT OF THE COURT'S RECOGNITION IN HARRIS v. STATE [ 645 So.2d 386] (FLA. 1994), THAT SENTENCING IS NOT A GAME IN WHICH ONE WRONG MOVE BY THE JUDGE MEANS IMMUNITY FOR THE PRISONER, IS IT STILL PER SE REVERSIBLE ERROR WHERE A TRIAL COURT ORALLY PRONOUNCES DEPARTURE REASONS AT SENTENCING BUT DOES NOT REDUCE THEM TO WRITING UNTIL FIVE BUSINESS DAYS LATER.
HARRIS, C.J., and GOSHORN and THOMPSON, JJ., concur.
In an abundance of caution, I concur because of the express dictates of Ree v. State, 565 So.2d 1329 (Fla. 1990). However, since the judge in the case stated his reasons for departure in the record at sentencing and filed them with the clerk within eight days of sentencing, it appears rather harsh to the state to now immunize the defendant from an otherwise appropriate sentence because of this judicial delay. Perhaps the supreme court is now willing to reconsider Ree based on its statement in Harris v. State, 645 So.2d 386 (Fla. 1994):
. . . and most appropriate to our resolution of the instant case, the court noted that "The Constitution does not require that sentencing should be a game in which a wrong move by the judge means immunity for the prisoner. (citation omitted).
GOSHORN, J., concurs.