Jordan v. State

562 So. 2d 820, 1990 WL 73318
District Court of Appeal of Florida·Decided June 6, 1990·No. 89-0817·Published·Cited by 2 cases

Opinion

562 So.2d 820 (1990)

Alphonso JORDAN, Appellant,
v.
STATE of Florida, Appellee.

No. 89-0817.

District Court of Appeal of Florida, Fourth District.

June 6, 1990.

*821 Richard L. Jorandby, Public Defender, and Louis G. Carres, Asst. Public Defender, West Palm Beach, for appellant.

Robert A. Butterworth, Atty. Gen., Tallahassee, and Lynn Waxman, Asst. Atty. Gen., West Palm Beach, for appellee.

LETTS, Judge.

In this case, the trial judge did not reduce his reasons for departing from the sentencing guidelines to writing until after the sentencing hearing. We agree that under Ree v. State, 14 F.L.W. 565 (Fla. Nov. 16, 1989),[1] this would normally require reversal. However, in the case at bar, written reasons were articulated on the scoresheet and we hold that is sufficient to satisfy Ree. See Mauney v. State, 553 So.2d 707 (Fla. 4th DCA 1989). Accordingly, we affirm.

The public defender additionally points out that the trial judge did not personally sign the scoresheet, but we do not believe his actual signature is required.

The reasons for departure as noted on the scoresheet during the sentencing hearing read: "recent release; continuing and persistent pattern of criminal activity." This written notation is consistent with the trial judge's oral pronouncement at the hearing. We can find no requirement that the trial judge must personally sign the scoresheet. Indeed, to the contrary, our supreme court has upheld a notation on the scoresheet written by the clerk at the trial court's direction. See Torres-Arboledo v. State, 524 So.2d 403 (Fla.), cert. denied, ___ U.S. ___, 109 S.Ct. 250, 102 L.Ed.2d 239 (1988).

The public defender further claims that the defendant's most recent acts of criminality occurred some six months before the crime now before us, and that six months is too long a time between crimes. We do not agree. The supreme court has not set an arbitrary number of days or months which would demonstrate, or not demonstrate, a continuing and persistent pattern of criminal activity. In fact, our supreme court in State v. Simpson, 554 So.2d 506 (Fla. 1989), while discussing another case, spoke of a defendant's release from prison "only months before."[2] From this, we conclude that "only months before" could certainly be interpreted to mean any period of less than a year. Moreover, ten months was held not to be too long in Williams v. State, 504 So.2d 392 (Fla. 1987).

We find no merit to any other point on appeal.

AFFIRMED.

GUNTHER, J., concurs.

GLICKSTEIN, J., concurs specially with opinion.

GLICKSTEIN, Judge, concurring specially.

Because of my belief in the necessity for sentencing guidelines and my concern for the disparity in sentencing which non-reviewable extent of departure sentences may be creating, I write, first, to express my concern for the thirty-year sentence in this case.

Appellant charges the trial court with vindictiveness against the defendant for having gone to trial, but the record does not support the charge. What may be supportable, had a "Brandeis brief" been filed with empirical, substantiating information, is that the sentence is disproportionate to the crime, or that there has been denial of equal protection of the law because of the disparity in departure sentences in similar crimes or that the sentence constitutes cruel and inhuman punishment — none of which was attempted.

As for the question of whether the sentence is disproportionate to the crime, in Solem v. Helm, 463 U.S. 277, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983), Justice Powell *822 wrote for the majority, with Chief Justice Burger dissenting (in which dissent Justices White, Rehnquist and O'Connor joined) as follows:

The final clause [of the Eighth Amendment] prohibits not only barbaric punishments, but also sentences that are disproportionate to the crime committed.
...
The principle that a punishment should be proportionate to the crime is deeply rooted and frequently repeated in common-law jurisprudence.

463 U.S. at 284, 103 S.Ct. at 3006.

[W]e hold as a matter of principle that a criminal sentence must be proportionate to the crime for which the defendant has been convicted. Reviewing courts, of course, should grant substantial deference to the broad authority that legislatures necessarily possess in determining the types and limits of punishments for crimes, as well as to the discretion that trial courts possess in sentencing convicted criminals. But no penalty is per se constitutional.

463 U.S. at 290, 103 S.Ct. at 3009-10 (footnote omitted).

[A] court's proportionality analysis under the Eighth Amendment should be guided by objective criteria, including (i) the gravity of the offense and the harshness of the penalty; (ii) the sentences imposed on other criminals in the same jurisdiction; and (iii) the sentences imposed for commission of the same crime in other jurisdictions.

463 S.Ct. at 292, 103 S.Ct. at 3011.

I have no authority which speaks to the question of denial of equal protection occasioned by the disparity in departure sentences in similar cases; however, attack is possible upon the extent of departure based upon cruel and inhuman punishment, as has been suggested in Appealing the New Federal Guidelines Sentences, The Florida Bar Journal (December 1989), p. 67.

As Lisa Berlow-Lehner's article notes:

Although this area is one best left to the sound judicial discretion of the sentencing judge, that discretion is not boundless. If limits are not placed upon the sentencing court's ability to depart, the three goals of guidelines sentencing — certainty, uniformity, and proportionality — will not be achieved. Moreover, there comes a point at which the exercise of judicial discretion in departing from the guidelines can reach the realm of unusual, if not cruel, punishment. In such a case, an appellant may argue not only that the amount of departure is unreasonable, but also that it contravenes the eighth amendment. It is evident that until the guidelines are amended or precedent is established to preclude these types of appeals, challenges to the extent of the departure should be pursued.

Id. at 69 (footnote omitted).

In any event, my hands are tied in this case with respect to the extent of departure. Ms. Berlow-Lehner points out:

It is interesting to note that the experience with appeals that challenge the extent of the departure at the state level caused the Florida Legislature to remove this entire area from the ambit of appellate review. In 1987, after four years of guidelines sentencing, the Florida Legislature enacted an amendment that expressly precludes appellate review of the extent of departure. In Minnesota, on the other hand, the state supreme court set a cap on departure sentences of twice that of the guidelines sentence.

Id. at 69 (footnotes omitted).

The frustration of having my hands tied with respect to the extent of departure is not eased by the language in PRISON UTILIZATION STUDY: Risk Assessment Techniques and Florida's Inmates, produced by four Florida universities, April, 1990, the Introduction of which states:

Florida's criminal justice system is in crisis.

Free access — add to your briefcase to read the full text and ask questions with AI

Jordan v. State, 562 So. 2d 820, 1990 WL 73318 (Fla. Ct. App. 1990).

562 So. 2d 820 (Jordan v. State) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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