Pope v. State, 561 So. 2d 554 (Fla. 1990). · Go Syfert
Search
Pope v. State, 561 So. 2d 554 (Fla. 1990). Cases Citing This Book View Copy Cite
G Cite
cited 11× by 11 distinct cases, 1990–2015 · 2 courts↓ Fading · …when an appellate court reverses a departure sentence because there were no written reasons, the court must remand for resentencing with no possibility of departure from the guidelines. at p. 556 ✓
348 citation events (48 in the last 25 years) across 3 distinct courts.
Strongest positive: State v. Brown (fla, 1995-05-04)
Treatment trajectory · 1990 → 2026 · click a year to view as-of
1990 2008 2026
Top citers, strongest first. 50 distinct citers. How cited ↗
discussed Cited as authority (verbatim quote) State v. Brown
Fla. · 1995 · signal: see · quote attribution · 1 verbatim quote · confidence high
when an appellate court reverses a departure sentence because there were no written reasons, the court must remand for resentencing with no possibility of departure from the guidelines.
discussed Cited as authority (verbatim quote) Murray v. State
Fla. · 1993 · signal: see · quote attribution · 1 verbatim quote · confidence high
we hold that when an appellate court reverses a departure sentence because there were no written reasons, the court must remand for resentencing with no possibility of departure from the guidelines.
discussed Cited as authority (rule) State v. Bray
Fla. Dist. Ct. App. · 2017 · confidence medium
The Second District reversed the downward departure sentence, based on Pope v. State, 561 So.2d 554, 556 (Fla. 1990), which held that where the trial court fails to provide written reasons for a departure, the trial court must impose a guidelines sentence on remand.
discussed Cited as authority (rule) Brian Scott Christy v. State of Florida
Fla. Dist. Ct. App. · 2015 · confidence medium
In Bryant v. State, 148 So.3d 1251, 1258 (Fla.2014), the Supreme Court held that under section 775.082(10), a sentence in excess of a nonstate prison sanction constitutes an upward departure sentence. “ “When an appellate court reverses a departure sentence because there were no written reasons, the court must remand for resentencing with no possibility of departure from the guidelines.’ ” Id. at 1256 (quoting Pope v. State, 561 So.2d 554, 556 (Fla.1990)).
examined Cited as authority (rule) Reginald L. Bryant v. State of Florida (4×)
Fla. · 2014 · confidence medium
This Court noted that it was receding from its decision in Barbera v. State, 505 So. 2d 413 (Fla. 1987) (permitting a trial judge to provide written reasons for departure on remand). - 10 - that precluding the trial court from reimposing a sentence beyond the guidelines was necessary because “[o]therwise, there would be no practical way to insure that trial judges would employ the necessary written statement in imposing departure sentences.” Pope, 561 So. 2d at 556 (Grimes, J., concurring); see also Donaldson v. State, 722 So. 2d 177, 188-89 (Fla. 1998).
discussed Cited as authority (rule) State v. Jackson
Fla. Dist. Ct. App. · 2009 · confidence medium
In Pope, the supreme court found “when the initial reasons [for departure] had been reversed by an appellate court,” or “when an appellate court reverses a departure sentence because there were no written reasons, the court must remand for resentencing with no possibility of departure from the guidelines.” Pope v. State, 561 So.2d 554, 556 (Fla.1990) (emphasis added) (citing Shull v. Dugger, 515 So.2d 748 (Fla.1987)).
discussed Cited as authority (rule) State v. Dunn
Fla. Dist. Ct. App. · 2009 · confidence medium
In Pope v. State, the supreme court held, “[W]hen an appellate court reverses a departure sentence because there were no written reasons, the court must remand for resentencing with no possibility of departure from the guidelines.” 561 So.2d 554, 556 (Fla.1990); see also Henderson v. State, 622 So.2d 172, 173 (Fla. 1st DCA 1993) (reversing the defendant’s departure sentence due to the trial court’s failure to provide reasons for departure and remanding “for resentencing within the guidelines, with no possibility of departure therefrom”); State v. Tiedge, 670 So.2d 191, 192 (Fla. 3d…
discussed Cited as authority (rule) Logan v. State
Fla. Dist. Ct. App. · 2008 · confidence medium
We agree. “[W]hen an appellate court reverses a departure sentence because there were no written reasons, the court must remand for resen-tencing with no possibility of departure from the guidelines.” Pope v. State, 561 So.2d 554, 556 (Fla.1990); see also Adams v. State, 695 So.2d 860, 860 (Fla. 2d DCA 1997).
cited Cited as authority (rule) Donaldson v. State
Fla. · 1998 · confidence medium
See Owens v. State, 598 So.2d 64, 64-65 (Fla.1992); Pope v. State, 561 So.2d 554, 556 (Fla.1990).
discussed Cited as authority (rule) Laines v. State
Fla. Dist. Ct. App. · 1995 · confidence medium
NOTES [1] Graham v. State, 631 So.2d 388 (Fla. 1st DCA 1994); Perrin v. State, 599 So.2d 1365 (Fla. 1st DCA 1992); Wright v. State, 573 So.2d 998 (Fla. 1st DCA 1991) (citing Hines v. State, 401 So.2d 878 (Fla. 3d DCA 1981)). [2] Second-degree murder requires proof of the element of death, which aggravated battery does not require; aggravated battery, in turn, requires proof of an element that the defendant either (a) intentionally caused great bodily harm, permanent disability or disfigurement, or (b) used a deadly weapon, which second-degree murder does not require. [3] Owens v. State, 598 So…
cited Cited as authority (rule) Jones v. State
Fla. Dist. Ct. App. · 1995 · confidence medium
Robertson v. State, 611 So.2d 1228, 1284 (Fla.1993); Pope v. State, 561 So.2d 554, 556 (Fla.1990).
discussed Cited as authority (rule) Justice v. State (2×) also: Cited "see"
Fla. Dist. Ct. App. · 1995 · confidence medium
Appellant urges us to follow the path taken by the supreme court in Pope v. State, 561 So.2d 554, 556 (Fla. 1990), in which the court imposed a prophylactic rule to prevent "multiple appeals, multiple resentencings and unwarranted efforts to justify an original departure." We believe that such prophylactic rules which limit the authority of the trial court should be used only in the most extreme situations.
discussed Cited as authority (rule) Kerr v. State
Fla. Dist. Ct. App. · 1994 · confidence medium
Because the trial court filed no written reasons for departure, we must reverse and “remand for resentencing with no possibility of departure from the guidelines.” King v. State, 623 So.2d 486, 489 (Fla.1993) (quoting Pope v. State, 561 So.2d 554, 556 (Fla.1990)).
discussed Cited as authority (rule) Brown v. State
Fla. Dist. Ct. App. · 1994 · confidence medium
The new holding in Smith , rendered nearly three years after Defendant’s conviction and a year-and-a-half after the Florida Supreme Court denied review, does not apply in a case such as this so as to provide Defendant an undeserved windfall.] In Pope v. State, 561 So.2d 554, 556 (Fla. 1990), the court held that “when an appellate court reverses a departure sentence because there were no written reasons, the court must remand for resentencing with no possibility of departure from the guidelines.” The problem in Pope was that while the trial court orally announced reasons for departure, th…
cited Cited as authority (rule) King v. State
Fla. · 1993 · confidence medium
When no written reason for departure is given, an appellate "court must remand for resentencing with no possibility of departure from the guidelines." Pope v. State, 561 So.2d 554, 556 (Fla. 1990).
discussed Cited as authority (rule) Kelly v. State
Fla. Dist. Ct. App. · 1993 · confidence medium
Generally, "when an appellate court reverses a departure sentence because there were no written reasons, the court must remand for resentencing with no possibility of departure from the guidelines." Pope v. State, 561 So.2d 554, 556 (Fla. 1990).
discussed Cited as authority (rule) Dupree v. State
Fla. Dist. Ct. App. · 1993 · confidence medium
In Smith, pertaining to the retroactive application of Pope v. State, 561 So.2d 554, 556 (Fla. 1990), [3] the court stated: [W]e hold that any decision of this Court announcing a new rule of law, or merely applying an established rule of law to a new or different factual situation, must be given retrospective application by the courts of this state in every case pending on direct review or not yet final.
discussed Cited as authority (rule) Robertson v. State
Fla. · 1993 · confidence medium
Moreover, "when an appellate court reverses a departure sentence because there were no written reasons, the court must remand for resentencing with no possibility of departure from the guidelines." Pope v. State, 561 So.2d 554, 556 (Fla. 1990).
cited Cited as authority (rule) Salves v. State
Fla. Dist. Ct. App. · 1992 · confidence medium
Pope v. State, 561 So.2d 554, 556 (Fla.1990).
discussed Cited as authority (rule) Massey v. State
Fla. Dist. Ct. App. · 1991 · confidence medium
Pope v. State, 561 So.2d 554, 555 (Fla. 1990). [6] Even the dissent concedes that the "clear legislative mandate" that written notice must be given to both the defendant and his attorney isn't really mandatory.
cited Cited as authority (rule) Miranda v. State
Fla. Dist. Ct. App. · 1990 · confidence medium
Pope v. State, 561 So.2d 554, 556 (Fla.1990).
discussed Cited as authority (rule) Merritt v. State
Fla. Dist. Ct. App. · 1990 · confidence medium
The rules of law that emerge from Pope v. State, 561 So.2d 554, 556 (Fla. 1990), and Betancourt v. State, 552 So.2d 1107 (Fla. 1989), are that if the sole error is the failure to reduce the reasons for a departure sentence to writing, the trial court is limited on remand by the guidelines; but if the record indicates that the trial court did not realize that the sentence was a departure, and as a result fails to reduce its reasons to writing, the trial court may depart from the guidelines on remand and set forth valid, written reasons.
discussed Cited as authority (rule) Johnson v. State
Fla. Dist. Ct. App. · 1990 · confidence medium
Pursuant to the supreme court’s decision in Pope v. State, 561 So.2d 554, 556 (Fla.1990), “when an appellate court reverses a departure sentence because there were no written reasons, the court must remand for resentencing with no possibility of departure from the guidelines.” Accordingly, we reverse and remand with directions to resentence the defendant within the guidelines.
discussed Cited "see" SAMUEL CALIXTE v. STATE OF FLORIDA
Fla. Dist. Ct. App. · 2017 · signal: see · confidence high
See Bryant v. State, 148 So. 3d 1251, 1256 (Fla. 2014) (citing Pope v. State, 561 So. 2d 554, 555 (Fla. 1990)); Boynton v. State, 473 So. 2d 703, 704 (Fla. 4th DCA 1985), approved, 478 So. 2d 351 (Fla. 1985).
discussed Cited "see" Calixte v. State
Fla. Dist. Ct. App. · 2017 · signal: see · confidence high
See Bryant v. State, 148 So.3d 1251, 1256 (Fla. 2014) (citing Pope v. State, 561 So.2d 554, 555 (Fla. 1990)); Boynton v. State, 473 So.2d 703, 704 (Fla. 4th DCA 1985), approved, 478 So.2d 351 (Fla. 1985).
discussed Cited "see" State v. Geoghagan
Fla. Dist. Ct. App. · 2009 · signal: see · confidence high
See Pope v. State, 561 So.2d 554, 556 (Fla.1990) (finding resentencing must be within the guidelines “when the initial reasons [for departure] had been reversed by an appellate court”); State v. Owens, 848 So.2d 1199 (Fla. 1st DCA 2003) (re *116 versing and remanding for resentencing within the guidelines where the trial court’s reason for departure was invalid).
discussed Cited "see" State v. Glover
Fla. Dist. Ct. App. · 2009 · signal: see · confidence high
See Pope v. State, 561 So.2d 554, 556 (Fla.1990) (citing Shull v. Dugger, 515 So.2d 748 (Fla.1987)) (finding resentencing must be within the guidelines “when the initial reasons [for departure] had been reversed by an appellate court”); State v. Owens, 848 So.2d 1199 (Fla. 1st DCA 2003) (reversing and remanding for resentencing within the guidelines where the trial court’s reason for departure was invalid).
discussed Cited "see" Jenigen v. State
Fla. Dist. Ct. App. · 2001 · signal: see · confidence high
See Pope v. State, 561 So.2d 554 (Fla.1990) (holding that where departure sentence is reversed for failure to provide written reasons, the appellate court must remand for resentencing within the guidelines).
cited Cited "see" Maddox v. State
Fla. · 2000 · signal: see · confidence high
See Pope, 561 So.2d at 554 .
cited Cited "see" Maddox v. State
Fla. · 2000 · signal: see · confidence high
See Pope, 561 So.2d at 554 .
cited Cited "see" State v. Bernard
Fla. Dist. Ct. App. · 1999 · signal: see · confidence high
See Pope v. State, 561 So.2d 554 (Fla.1990).
cited Cited "see" State v. Licea
Fla. Dist. Ct. App. · 1998 · signal: see · confidence high
See Pope v. State, 561 So.2d 554 (Fla.1990); State v. Tiedge, 670 So.2d 191 (Fla. 3d DCA 1996).
cited Cited "see" State v. Colon
Fla. Dist. Ct. App. · 1997 · signal: see · confidence high
See Pope v. State, 561 So.2d 554 (Fla.1990). 1 Colon may be entitled to credit against his sentence for the time he served on community control pending the result in this case.
cited Cited "see" Murphy v. State
Fla. Dist. Ct. App. · 1997 · signal: see · confidence high
See Pope v. State, 561 So.2d 554 (Fla.1990); Wilcox v. State, 664 So.2d 55 (Fla. 5th DCA 1995).
cited Cited "see" Taccariello v. State
Fla. Dist. Ct. App. · 1997 · signal: see · confidence high
See Pope v. State, 561 So.2d 554 (Fla.1990).
cited Cited "see" Forbes v. State
Fla. Dist. Ct. App. · 1996 · signal: see · confidence high
See Pope v. State, 561 So.2d 554 (Fla.1990); McGowan v. State, 648 So.2d 1225 (Fla. 4th DCA 1995).
cited Cited "see" JM v. State
Fla. Dist. Ct. App. · 1996 · signal: see · confidence high
See Pope v. State, 561 So.2d 554 (Fla.1990).
cited Cited "see" J.M. v. State
Fla. Dist. Ct. App. · 1996 · signal: see · confidence high
See Pope v. State, 561 So.2d 554 (Fla.1990).
cited Cited "see" State v. Eaves
Fla. Dist. Ct. App. · 1996 · signal: see · confidence high
See Pope v. State, 561 So.2d 554 (Fla.1990).
cited Cited "see" State v. Weaver
Fla. Dist. Ct. App. · 1995 · signal: see · confidence high
See Pope v. State, 561 So.2d 554 (Fla.1990).
discussed Cited "see" State v. Zlockower
Fla. Dist. Ct. App. · 1995 · signal: see · confidence high
See Pope v. State, 561 So.2d 554 (Fla. 1990). [2] Defendant relies on precedent from the fourth and fifth districts which holds that no reasons for downward departure need to be given upon revocation of probation or community control where the initial placement on probation or community control was a downward departure disposition agreed to by the State.
cited Cited "see" Perry v. State
Fla. Dist. Ct. App. · 1994 · signal: see · confidence high
See Pope v. State, 561 So.2d 554 (Fla.1990).
cited Cited "see" Parker v. State
Fla. Dist. Ct. App. · 1994 · signal: see · confidence high
See Pope v. State, 561 So.2d 554 (Fla. 1990); Ree v. State, 565 So.2d 1329 (Fla. 1990).
cited Cited "see" State v. Roman
Fla. Dist. Ct. App. · 1994 · signal: see · confidence high
See Pope v. State, 561 So.2d 554 (Fla.1990); Ree v. State, 565 So.2d 1329 (Fla.1990).
cited Cited "see" McCoy v. State
Fla. Dist. Ct. App. · 1994 · signal: see · confidence high
See Pope v. State, 561 So.2d 554 (Fla. 1990).
cited Cited "see" State v. Salley
Fla. Dist. Ct. App. · 1992 · signal: see · confidence high
See Pope v. State, 561 So.2d 554 (Fla. 1990).
cited Cited "see" Martin v. State
Fla. Dist. Ct. App. · 1992 · signal: see · confidence high
See Pope, 561 So.2d at 556 .
cited Cited "see" Hill v. State
Fla. Dist. Ct. App. · 1992 · signal: see · confidence high
See Pope v. State, 561 So.2d 554 (Fla.1990).
cited Cited "see" Toussaint v. State
Fla. Dist. Ct. App. · 1992 · signal: see · confidence high
See Pope v. State, 561 So.2d 554 (Fla. 1990).
cited Cited "see" Rivas v. State
Fla. Dist. Ct. App. · 1991 · signal: see · confidence high
See Pope v. State, 561 So.2d 554 (Fla. 1990) and Pittman v. State, 572 So.2d 29 (Fla. 4th DCA 1990).
Retrieving the full opinion text from the archive…
Daniel Joseph POPE, Petitioner,
v.
STATE of Florida, Respondent.
74163.
Supreme Court of Florida.
Apr 26, 1990.
561 So. 2d 554
1990 WL 55691
Barkett.
Cited by 283 opinions  |  Published

[*555] James B. Gibson, Public Defender, James R. Wulchak, Chief, Appellate Div., and Larry B. Henderson, Asst. Public Defender, Daytona Beach, for petitioner.

Robert A. Butterworth, Atty. Gen., Kellie A. Nielan and Bonnie Jean Parrish, Asst. Attys. Gen., Daytona Beach, for respondent.

CORRECTED OPINION

BARKETT, Justice.

We have for review Pope v. State, 542 So.2d 423 (Fla. 5th DCA 1989), based upon express and direct conflict with Crigler v. State, 526 So.2d 176 (Fla. 2d DCA 1988), and numerous other decisions of the district courts.[1] We quash the district court's decision in Pope and approve the decision in Crigler.

Pope was found guilty of violating community control. The recommended guidelines sentence, after considering the one-cell increase for that violation, ranged from community control to twelve-to-thirty months' incarceration. Instead, the trial court imposed a departure sentence of two concurrent five-year terms of imprisonment, followed by two years' community control. At the sentencing hearing, the trial court orally gave reasons for the departure sentence, but did not provide reasons in writing pursuant to the requirements of Florida Rule of Criminal Procedure 3.701(d)(11). That rule provides:

Any sentence outside the permitted guideline range must be accompanied by a written statement delineating the reasons for the departure.

The district court correctly vacated the sentence due to the trial court's failure to provide written reasons. State v. Jackson, 478 So.2d 1054, 1055 (Fla. 1985), receded from on other grounds, Wilkerson v. State, 513 So.2d 664 (Fla. 1987); Fla.R. Crim.P. 3.701(d)(11). The district court remanded, giving the trial court the opportunity to provide written reasons justifying the departure when it resentences Pope.

Pope contends that Jackson and Shull v. Dugger, 515 So.2d 748 (Fla. 1987), compelled the district court to remand only for imposition of a sentence within the guidelines, thereby prohibiting a departure in resentencing. We agree.

In Jackson, this Court recognized that compliance with rule 3.701(d)(11) promotes a more meaningful and expeditious appellate review. Jackson, 478 So.2d at 1055-56. The failure of trial courts to provide written reasons inappropriately requires appellate courts to cull through the sometimes extensive sentencing colloquy in search of "reasons" supporting departure, thereby making possible results that are[*556] imprecise and unintended by the trial court. Id. at 1056.

After Jackson, when a trial court failed to provide written reasons, some district courts remanded for resentencing within the guidelines,[2] while others remanded to permit the trial court to depart from the guidelines again after providing written reasons.[3]

In Shull we held that, upon remand, a sentencing judge would not be permitted to provide new reasons for departure when the initial reasons had been reversed by an appellate court. Shull, 515 So.2d at 750. To avoid multiple appeals, multiple resentencings, and unwarranted efforts to justify an original departure, a sentencing judge could impose only a sentence within the guidelines when resentencing a defendant on remand. Id.

Effectively, Jackson and Shull both determined that at the point of remand no valid reasons for departure existed under the rule. Jackson said oral reasons were invalid and required resentencing. Shull said invalid reasons, even if written, must be remanded only for a guidelines sentence.

Applying the principles of Jackson and Shull, and for the same policy reasons, we hold that when an appellate court reverses a departure sentence because there were no written reasons, the court must remand for resentencing with no possibility of departure from the guidelines.

Although this issue was not the primary focus of the appeal, we recognize that in Barbera v. State, 505 So.2d 413 (Fla. 1987), we remanded for resentencing to permit the trial court to specify written reasons for a departure sentence. We recede from Barbera to the extent that it is inconsistent with this opinion.

We quash the opinion of the district court and remand for proceedings consistent herewith.

It is so ordered.

EHRLICH, C.J., and OVERTON, McDONALD and KOGAN, JJ., concur.

GRIMES, J., concurs with an opinion, in which SHAW, J., concurs.

SHAW, J., concurs in result only with an opinion, in which GRIMES, J., concurs.

GRIMES, Justice, concurring.

At the time this Court decided State v. Jackson, 478 So.2d 1054 (Fla. 1985), receded from on other grounds, Wilkerson v. State, 513 So.2d 664 (Fla. 1987), the majority of the district courts of appeal had approved guideline departures unaccompanied by a written statement so long as the reasons for departure were adequately set forth in the sentencing colloquy. Therefore, if this sentence had been imposed prior to Jackson, I would authorize the trial court upon remand to impose a departure sentence by setting forth in the requisite written statement the same reasons given for departure at sentencing.

Because Pope's sentence was not imposed until 1988, I am willing to apply the principle of Shull v. Dugger, 515 So.2d 748 (Fla. 1987), to preclude the trial court from reimposing a sentence beyond the guidelines. Otherwise, there would be no practical way to insure that trial judges would employ the necessary written statement in imposing departure sentences. I point out, however, that departure sentences which have become final that were reimposed after remand for initially failing to provide written statements will not be subject to[*557] collateral attack. See McCuiston v. State, 534 So.2d 1144 (Fla. 1988).

SHAW, J., concurs.

SHAW, Justice, concurring in result only.

I write to clarify what I see as a discrepancy in the majority opinion. The majority cites State v. Jackson, 478 So.2d 1054 (Fla. 1985), receded from on other grounds, Wilkerson v. State, 513 So.2d 664 (Fla. 1987), to support its conclusion that oral reasons for departure cannot be converted into written form on remand. A close reading of Jackson, however, reveals that we apparently reached a contrary conclusion there: We approved "that part of the district court's decision directing a written order expressing reasons for departure" on remand.[*]Id. at 1055. Thus, without expressly saying so, the instant opinion recedes from Jackson as well as Barbera v. State, 505 So.2d 413 (Fla. 1987). I nevertheless agree with the present result and point out that it is consistent with our decision in Stewart v. State, 549 So.2d 171 (Fla. 1989), wherein we ruled that if a trial court fails to give contemporaneous written reasons for imposing the death penalty, no reasons may be provided on remand.

GRIMES, J., concurs.

1 We have jurisdiction. Art. V, § 3(b)(3), Fla. Const.
2 See, e.g., Rangel v. State, 532 So.2d 84 (Fla. 3d DCA 1988); Jenkins v. State, 528 So.2d 527 (Fla. 2d DCA 1988); Martinez v. State, 526 So.2d 1080 (Fla. 2d DCA 1988); Crigler v. State, 526 So.2d 176 (Fla. 2d DCA 1988); Nichols v. State, 521 So.2d 372 (Fla. 2d DCA 1988); Jones v. State, 502 So.2d 1375 (Fla. 4th DCA 1987).
3 See, e.g., State v. Simmons, 539 So.2d 40 (Fla. 3d DCA 1989); State v. Ohler, 539 So.2d 38 (Fla. 3d DCA 1989); State v. Alvarez, 538 So.2d 956 (Fla.3d DCA 1989); State v. Charles, 537 So.2d 1136 (Fla. 3d DCA 1989); State v. Richardson, 536 So.2d 1193 (Fla. 4th DCA 1989).

[*] See also Jackson v. State, 454 So.2d 691, 693 (Fla. 1st DCA 1984), for the district court's holding: "[W]e hold that upon remand, appellant shall be entitled to be resentenced under [an earlier version of] the guidelines... . We also concur in the Carter [v. State, 452 So.2d 953 (Fla. 5th DCA 1984)] court's observation that a violation of probation may justify departure from the presumptive sentence established in the guidelines provided the basis for the departure is stated in writing... ."