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Vara v. State

District Court of Appeal of Florida, Second District
Feb 27, 1991
575 So. 2d 306 (Fla. Dist. Ct. App. 1991)

Summary

In Vara, the court failed to prepare an order of departure until after the defendant was sentenced and the notice of appeal had been filed.

Summary of this case from San Martin v. State

Opinion

No. 89-02765.

February 27, 1991.

Appeal from the Circuit Court for Lee County, James R. Thompson, J.

James Marion Moorman, Public Defender, Bartow, and Wendy E. Friedberg, Asst. Public Defender, Bartow, for appellant.

Robert A. Butterworth, Atty. Gen., Tallahassee, and William I. Munsey, Jr., Asst. Atty. Gen., Tampa, for appellee.


Genero Vara appeals upward departure sentences imposed against him on resentencing for second-degree murder. We reverse and remand for sentencing within the guidelines.

This is the second occasion Vara has been before this court on a sentencing issue. In Vara v. State, 546 So.2d 1071 (Fla. 2d DCA), review denied, 554 So.2d 1169 (Fla. 1989), this court affirmed Vara's conviction, vacated his sentence, and remanded the case "[f]or entry of a written departure order delineating . . . three valid departure reasons if it so chooses."

In this appeal, Vara challenges the trial court's submission of written reasons for the departure on resentencing after the notice of this appeal was filed. The relevant dates are:

August 19, 1989 — Vara resentenced outside of the sentencing guidelines

September 25, 1989 — Notice of appeal filed

October 4, 1989 — Written reasons for upward departure filed

We conclude that at the time the departure reasons were filed the notice of appeal had vested jurisdiction in this court, and the trial court was without jurisdiction over the case. See Hawryluk v. State, 543 So.2d 1318 (Fla. 5th DCA 1989). Because the written reasons which were entered for exceeding the guidelines cannot be considered by this court, in the absence of written departure grounds, Pope v. State, 561 So.2d 554 (Fla. 1990) requires this court to remand this case for resentencing within the sentencing guidelines. See also Day v. State, 573 So.2d 1022 (Fla. 2d DCA 1991); Johnson v. State, 566 So.2d 609 (Fla. 4th DCA 1990).

Reversed and remanded for resentencing within the sentencing guidelines.

SCHEB, A.C.J., and THREADGILL, J., concur.


Summaries of

Vara v. State

District Court of Appeal of Florida, Second District
Feb 27, 1991
575 So. 2d 306 (Fla. Dist. Ct. App. 1991)

In Vara, the court failed to prepare an order of departure until after the defendant was sentenced and the notice of appeal had been filed.

Summary of this case from San Martin v. State
Case details for

Vara v. State

Case Details

Full title:GENERO MUNIZ VARA, APPELLANT, v. STATE OF FLORIDA, APPELLEE

Court:District Court of Appeal of Florida, Second District

Date published: Feb 27, 1991

Citations

575 So. 2d 306 (Fla. Dist. Ct. App. 1991)

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San Martin v. State

We disagree. We find this set of facts to be distinguishable from those in Vara v. State, 575 So.2d 306 (Fla.…

Pausch v. State

The notice of appeal divested the trial court of jurisdiction to enter an untimely departure order. Thus, we…