From Casetext: Smarter Legal Research

State v. MacMillan

District Court of Appeal of Florida, Fifth District
Apr 19, 1996
671 So. 2d 893 (Fla. Dist. Ct. App. 1996)

Opinion

No. 95-447.

April 19, 1996.

Appeal from the Circuit Court for Volusia County; Edwin P.B. Sanders, Judge.

Robert A. Butterworth, Attorney General, Tallahassee, and Timothy D. Wilson, Assistant Attorney General, Daytona Beach, for Appellant.

Horace Smith, Jr., P.A., of Monaco, Smith, Hood, Perkins, Loucks Stout, Daytona Beach, for Appellee.


This is an appeal from a sentence. Because the judge departed downwards from the sentencing guidelines without giving written reasons we must reverse. State v. Lyles, 576 So.2d 706 (Fla. 1991); Ree v. State, 565 So.2d 1329 (Fla. 1990). Because there was no evidentiary basis for the departure we also reverse. Because there was no proper guideline scoresheet used by the judge the sentencing proceedings were fatally flawed from the outset. The only fair and proper way to correct the situation is to vacate the purported sentence and remand to the trial court for a proper sentencing hearing where both sides can present what evidence they deem necessary and a correct guideline scoresheet is used. If the sentencing judge again decides to depart then the sentencing document must have on it the written reasons, which should be legally recognized valid ones.

SENTENCE VACATED; REMANDED.

W. SHARP and THOMPSON, JJ., concur.


Summaries of

State v. MacMillan

District Court of Appeal of Florida, Fifth District
Apr 19, 1996
671 So. 2d 893 (Fla. Dist. Ct. App. 1996)
Case details for

State v. MacMillan

Case Details

Full title:STATE OF FLORIDA, APPELLANT, v. EDWARD JOSEPH MacMILLAN, APPELLEE

Court:District Court of Appeal of Florida, Fifth District

Date published: Apr 19, 1996

Citations

671 So. 2d 893 (Fla. Dist. Ct. App. 1996)

Citing Cases

State v. Osborn

State v. Chandler, 668 So.2d 1087 (Fla. 1st DCA 1996). See also, State v. MacMillan, 671 So.2d 893 (Fla. 5th…

Perry v. State

Accordingly, we remand for resentencing, at which the state may present evidence to support the life…