Opinion
No. 91-3142.
April 14, 1993. Rehearing Denied May 26, 1993.
Appeal from the Circuit Court, Broward County, Richard D. Eade, J.
Robert A. Butterworth, Atty. Gen., Tallahassee, and Michelle Smith, Asst. Atty. Gen., West Palm Beach, for appellant.
Richard L. Jorandby, Public Defender, and Barbara J. Wolfe, Asst. Public Defender, West Palm Beach, for appellee.
We affirm the entry of Stone's downward departure sentence because the court status report was a sufficient contemporaneous writing, which listed the trial court's reasons for departure. State v. Salley, 601 So.2d 309 (Fla. 4th DCA 1992). Because we conclude that the trial court entered contemporaneous written reasons for departure, we do not need to address Stone's ineffective assistance of counsel claim, which arises from this issue. The trial court, however, erred in sentencing Stone to community control pursuant to section 948.01(10), Florida Statutes (1991). State v. Burgos, 613 So.2d 588 (Fla. 4th DCA 1993). Accordingly, Stone's sentence is reversed and remanded.
AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.
GUNTHER, J., concurs.
STONE, J., concurs specially with opinion.
OWEN, WILLIAM C., Jr., Senior Judge, dissents with opinion.
As Judge Owen's dissent correctly states, the trial court did not specify in writing that Appellee was a substance abuser amenable to rehabilitation. However, a court form entitled "court status," incorporated into the written sentencing documents, required Appellee to go into the "Straight" program (obviously for substance abusers), to provide a periodic urinalysis, and to attend Alcoholics and Narcotics Anonymous meetings. Another executed contemporaneous order mandated Appellee's placement in, and successful completion of, a residential treatment program that "meets" his "needs." The documents additionally included an order that Appellee be held in custody until a representative from the Straight program picked him up. Considering the totality of the circumstances, these writings are sufficient to permit the trial court to revisit the question of a downward departure.
I also note that our majority opinion does not comment on whether probation is a viable alternative sentence. That issue is not raised on this appeal.
From a reading of the transcripts of the several sentencing hearings of appellee, a thrice-convicted robber, one could fairly discern that a conscientious trial judge had reached the conclusion (even though never expressly articulated as a finding) appellee was a substance abuser amenable to rehabilitation. That would be a valid reason for a downward departure from the sentencing guidelines. Herrin v. State, 568 So.2d 920 (Fla. 1990); Barbera v. State, 505 So.2d 413 (Fla. 1987), receded from on other grounds, Pope v. State, 561 So.2d 554 (Fla. 1990). But, even with the liberality allowed in State v. Sally, 601 So.2d 309 (Fla. 4th DCA 1992), I cannot find in the record anywhere, including the court status report referred to in the majority opinion, any writing signed by the court listing either that or any other reason for departure. A trial court's failure to comply with the requirements of Florida Rule of Criminal Procedure 3.701(d)(11) requires the sentence to be vacated, State v. Jackson, 478 So.2d 1054 (Fla. 1985), receded from on other grounds, Wilkerson v. State, 513 So.2d 664 (Fla. 1987), and upon remand the defendant must be re-sentenced with no possibility of departing from the guidelines. Pope v. State, 561 So.2d 554 (Fla. 1990).
For the reasons stated, I dissent from the majority and would vacate the sentence with direction that upon remand appellee be sentenced within the guidelines. Whether the trial court's failure to comply with Rule. 3.701(d)(11) can be the basis of a claim of ineffective assistance of counsel should be determined if an when presented by an appropriate procedure and at the appropriate time and place, upon an evidentiary hearing if necessary, rather than summarily from the face of this record. If such a claim were to be filed, fairness would require that appellee's trial counsel be afforded an opportunity to respond.
I do agree with that part of the majority opinion which recognizes that Section 948.01(10), Florida Statutes (1991) precludes appellee being placed on community control. The area of disagreement here (as with this Court's recent opinion in State v. Burgos, cited by the majority) is the failure to make clear that upon re-sentencing neither community control nor probation is a viable alternative. If the Legislature would not allow one convicted of a forcible felony to be placed on community control if previously convicted of a forcible felony, it logically follows that it was most certainly the legislative intent that one convicted of a forcible felony not be placed on probation if previously convicted of a forcible felony. Thus, with community control and probation ruled out as alternatives, it seems to me that the 15 year sentence that the court imposed on Count I (and then suspended in favor of two years community control followed by three years probation) is proper.