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527 So. 2d 925

Docket No. 87-1815.

Tyson v. State

Ira Chester TYSON, Appellant, v. STATE of Florida, Appellee.

District Court of Appeal of Florida

Decided June 29, 1988.

District Court of Appeal of Florida · decided 1988-06-29

Cited by 3 later decisions — most recently April 1989

3 state decisions

Key passage — most relied on by later courts

“We cannot read Shull 's repeated references to `the reasons for departure in the original order' to mean anything but the grounds actually assigned for the first departure... . We do not think that it elevates form over substance to adhere to the strict admonition of the supreme court that the new grounds for departure may not be seized upon after the first articulated are found insufficient.”

quoted by 1 later decision, including 545 So. 2d 302 - Williams v. State

“enunciat[ing] new reasons for a departure sentence after the reasons given for the original departure sentence have been reversed by an appellate court.”

quoted by 1 later decision, including 545 So. 2d 302 - Williams v. State

Relies on 515 So. 2d 748 - Shull v. Dugger · 504 So. 2d 791 - Barnett Banks Trust Co., N.A. v. Hyman

Good law ✅— No negative treatment on recordhow we know

Decided 1988-06-29

View the full empirical analysis of this case →

¶1*926 Richard L. Jorandby, Public Defender, and Anthony Calvello, Asst. Public Defender, West Palm Beach, for appellant.

¶2Robert A. Butterworth, Atty. Gen., Tallahassee, and Joy B. Shearer, Asst. Atty. Gen., West Palm Beach, for appellee.

¶3WALDEN, Judge.

¶4The defendant, Ira Tyson, was convicted of strong arm robbery, for which the presumptive guidelines sentence is three and one-half to four and one-half years. The trial judge originally orally stated that he was departing from the guidelines because the defendant was an habitual offender and sentenced Tyson to thirty years' incarceration. The defendant appealed the departure in Tyson v. State, 504 So.2d 791 (Fla. 4th DCA 1987). This Court reversed and ruled that the habitual offender statute cannot be used as a basis for departure and further ruled that the trial court failed to set forth in writing its grounds for departure. On remand the trial court again departed from the guidelines and gave two new written reasons for departure.

¶5We reverse and remand for resentencing within the guidelines on the basis of the principle espoused in Shull v. Dugger, 515 So.2d 748 (Fla. 1987), which holds that a trial court is required to articulate all of the reasons for departure in the original order so as to avoid unwarranted efforts to justify a departure. A trial court may not enunciate new reasons for a departure sentence after the reasons given for the original departure have been reversed by an appellate court. Although Shull dealt with a situation where the trial court had given written reasons for departure which were found to be invalid, we extend the rule to apply when a trial court merely states oral reasons for departure which are found to be invalid.

¶6Reversed and Remanded for further proceedings consistent herewith.

¶7DELL, J., concurs.

¶8HERSEY, C.J., concurs in result only.

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