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532 So. 2d 1345

532 So.2d 1345

13 Fla.L.Weekly 2433

Florence v. State

District Court of Appeal of Florida

Decided November 2, 1988

District Court of Appeal of Florida · decided 1988-11-02

Cited by 1 later decisions — most recently April 1989

1 state decisions

Relies on 519 So. 2d 618 - Mays v. State · 478 So. 2d 51 - Florida Bar v. Winter · 512 So. 2d 1085 - Ree v. State

Good law ✅— No negative treatment on recordhow we know

Decided 1988-11-02

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PER CURIAM.

¶1Appellant was found guilty of one count of delivery of cocaine. The guidelines called for a sentence of nine to twelve *1346years. The trial court sentenced appellant to fifteen years based upon the following written reason:

Based on the timing of the commission of the criminal offense in the instant case only four (4) months and nineteen (19) days from the date of the Defendant's release from incarceration on a similar charge, this Court finds that there are clear and convincing reasons for upward departure from the presumptive sentencing guidelines in the instant case and sentences the Defendant to fifteen (15) years in Florida State Prison.

¶2We reverse. The trial court failed to complete the order containing the written reason for departure contemporaneously with the pronouncement of sentence. State v. Oden, 478 So.2d 51 (Fla.1985); Ree v. State, 512 So.2d 1085 (Fla. 4th DCA 1987). Additionally, the record contains no competent evidence to establish the release date given in the written order, a release date disputed by appellant. See Brooks v. State, 490 So.2d 173, 174 (Fla. 5th DCA 1986) (where defendant disputes timing of offenses, burden is on the state to present competent evidence refuting his claims). While the reason given for departure need only be proved by a preponderance of the evidence, there was no competent evidence presented by the state.

¶3Accordingly, we reverse and remand with instructions that appellant be resen-tenced within the guidelines. We also order the costs imposed be stricken as appellant was not given notice or an opportunity to be heard on that issue. See Mays v. State, 519 So.2d 618 (Fla.1988).

¶4REVERSED and REMANDED.

DOWNEY, GLICKSTEIN and DELL, JJ., concur.
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