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461 So. 2d 1359

Docket Nos. 84-570 to 84-572.

Myrick v. State

Bobby MYRICK, Appellant, v. STATE of Florida, Appellee.

District Court of Appeal of Florida

Decided November 28, 1984.

Rehearing Denied January 14, 1985.

District Court of Appeal of Florida · decided 1984-11-28

Cited by 29 later decisions — most recently June 1990 · most notably 487 So. 2d 1045 - State v. Whitfield (1986), 565 So. 2d 328 - Erickson v. State (1990)

29 state decisions

Key passage — most relied on by later courts

“[W]hen a trial court disregards the guidelines and imposes a sentence which exceeds the presumptive guidelines sentence, it would seem illogical to conclude that the court gave clear and convincing reasons for departing from the guidelines under rule 3.701d.ll. We could not conclude that a court properly departed from the guidelines when the court had nothing under consideration from which to depart. Under those circumstances the purpose of the guidelines — to promote uniformity of sentencing by the trial courts of similarly situated defendants — would be not only not furthered but would be thwarted.”

quoted by 1 later decision, including 474 So. 2d 250 - Ford v. State

“The trial court did not follow the procedures set forth in the sentencing guidelines. See Fla.R.Crim.P. 3.701d. The court sentenced the defendant to the maximum sentences without the benefit of a guidelines scoresheet which would have provided a presumptive sentence. The court announced what purported to be reasons for departing from the guidelines. But, not knowing the presumptive sentences under the guidelines, the court was without sufficient information to decide whether to depart from the guidelines.”

quoted by 1 later decision, including 474 So. 2d 250 - Ford v. State

Relies on 448 So. 2d 1013 - State v. Rhoden · 458 So. 2d 10 - Mitchell v. State

Good law ✅— No negative treatment on recordhow we know

Decided 1984-11-28

View the full empirical analysis of this case →

¶1Jerry Hill, Public Defender, Bartow, and Amelia G. Brown, Asst. Public Defender, Tampa, for appellant.

¶2Jim Smith, Atty. Gen., Tallahassee, and William I. Munsey, Jr., Asst. Atty. Gen., Tampa, for appellee.

¶3PER CURIAM.

¶4We vacate defendant's sentence for breaking and entering with intent to commit grand larceny and for two counts of uttering a forged instrument. We remand for resentencing.

¶5Although the sentencing guidelines were applicable because defendant elected to be sentenced under the guidelines, the trial court did not follow the guidelines procedures. See Fla.R.Crim.P. 3.701 d. The court sentenced defendant without the benefit of a guidelines scoresheet which would have provided a presumptive sentence. Not knowing the presumptive sentence, the court was without sufficient information to decide whether to depart from the guidelines.

¶6Our conclusion is not changed by the facts that the court gave reasons which are now argued to be sufficient to justify a departure from the guidelines and that the court commented that if, after a scoresheet was provided, he determined the guidelines presumptive sentence was heavy enough, he might modify the sentence. We could not accept an argument that under those circumstances there was harmless error. That would put the cart before the horse. The sentencing guidelines were promulgated to provide actual guidance to trial courts in sentencing and not simply to be an after-the-fact reference source by which to ascertain whether a trial court is satisfied with the guidelines.

¶7Also, when a trial court disregards the guidelines and imposes a sentence which exceeds the presumptive guidelines sentence, it would seem illogical to conclude that the court gave clear and convincing reasons for departing from the guidelines under rule 3.701 d 11. We could not conclude that a court properly departed from the guidelines when the court had nothing under consideration from which to depart. Under those circumstances the purpose of the guidelines — to promote uniformity of sentencing by the trial courts of similarly situated defendants — would be not only not furthered but would be thwarted.

¶8*1360 The failure of defendant to make a contemporaneous objection does not preclude appellate review. See State v. Rhoden,448 So.2d 1013 (Fla. 1984); Mitchel v. State,458 So.2d 10 (Fla. 1st DCA 1984).

¶9We remand for resentencing consistent with this opinion.

¶10OTT, A.C.J., and DANAHY and LEHAN, JJ., concur.

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