Osterback v. State

District Court of Appeal of Florida

Osterback v. State

574 So. 2d 327, 1991 Fla. App. LEXIS 1383, 1991 WL 18749

CourtDistrict Court of Appeal of Florida

DecidedFebruary 21, 1991

DocketNo. 90-448

StatusPublished

Cited by1 cases

This text of 574 So. 2d 327 (Osterback v. State) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Osterback v. State, 574 So. 2d 327, 1991 Fla. App. LEXIS 1383, 1991 WL 18749 (Fla. Ct. App. 1991).

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Opinion

PER CURIAM.

Defendant was sentenced to life imprisonment and a consecutive term of forty years. Under the sentencing guidelines, the recommended range was life imprisonment. The trial court failed to provide contemporaneous written reasons justifying departure. This constituted error. Robinson v. State, 520 So.2d 1 (Fla.1988); Edwards v. State, 570 So.2d 1159 (Fla. 5th DCA 1990). However, because the trial court did not realize that it was imposing a departure sentence, on remand the trial court must be permitted to consider whether departure is appropriate and, if so, to set forth valid reasons for departure. State v. Betancourt, 552 So.2d 1107 (Fla.1989).

We have considered defendant’s other points on appeal and we find them to be without merit.

Therefore, we affirm the convictions and reverse the departure sentence and remand for resentencing.

Judgment AFFIRMED; sentence REVERSED and cause REMANDED.

PETERSON, GRIFFIN and DIAMANTIS, JJ., concur.

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PER CURIAM.

Defendant was sentenced to life imprisonment and a consecutive term of forty years. Under the sentencing guidelines, the recommended range was life imprisonment. The trial court failed to provide contemporaneous written reasons justifying departure. This constituted error. Robinson v. State, 520 So.2d 1 (Fla.1988); Edwards v. State, 570 So.2d 1159 (Fla. 5th DCA 1990). However, because the trial court did not realize that it was imposing a departure sentence, on remand the trial court must be permitted to consider whether departure is appropriate and, if so, to set forth valid reasons for departure. State v. Betancourt, 552 So.2d 1107 (Fla.1989).

We have considered defendant’s other points on appeal and we find them to be without merit.

Therefore, we affirm the convictions and reverse the departure sentence and remand for resentencing.

Judgment AFFIRMED; sentence REVERSED and cause REMANDED.

PETERSON, GRIFFIN and DIAMANTIS, JJ., concur.

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574 So. 2d 327, 1991 Fla. App. LEXIS 1383, 1991 WL 18749, Counsel Stack Legal Research, https://law.counselstack.com/opinion/osterback-v-state-fladistctapp-1991.

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