Opinion
No. 94-429.
May 26, 1995. Order Denying Rehearing and Certifying Question July 14, 1995.
Appeal from the Circuit Court, Marion County, Carven D. Angel, J.
James B. Gibson, Public Defender, and M.A. Lucas, Asst. Public Defender, Daytona Beach, for appellant.
Robert A. Butterworth, Atty. Gen., Tallahassee, and Mark S. Dunn, Asst. Atty. Gen., Daytona Beach, for appellee.
We affirm the defendant's convictions for attempted first degree murder with a firearm, burglary of a structure while armed, two counts of robbery with a firearm, three counts of aggravated assault with a firearm, two counts of grand theft auto, evidence tampering, and arson. We are bound, however, to vacate the departure sentences of life imprisonment imposed by the lower court. The supreme court has clearly and repeatedly announced that guidelines departure orders must be filed contemporaneously with the announced departure sentence. Blair v. State, 598 So.2d 1068 (Fla. 1992); State v. Lyles, 576 So.2d 706 (Fla. 1991); Ree v. State, 565 So.2d 1329 (Fla. 1990). The departure order in this case shows that it was prepared and filed ten days later, which plainly violates the supreme court's requirement. For this reason, we vacate the departure sentences and remand to the lower court to resentence defendant within the guidelines.
The maximum permitted sentence under the guidelines is nine years' imprisonment.
AFFIRMED in part; and REMANDED.
PETERSON and THOMPSON, JJ., concur.
ON MOTION FOR REHEARING
We find no merit in appellee's argument on rehearing that the 1994 statutory and rule amendments found in section 921.0016, Florida Statutes, and Rule 3.702, Florida Rules of Criminal Procedure, apply to this case. Cohen's crimes were committed prior to January 1, 1994; the amendments apply to offenses committed after that date.
As to the state's request that we certify the same question certified in Colbert v. State, 646 So.2d 234 (Fla. 5th DCA 1994), review granted, ___ So.2d ___, No. 85,047 (Fla. May 5, 1995), it does not appear that the reasoning that motivated the Colbert certification would also apply in this case. The distinction between the five business day delay in Colbert and the eight business day delay in this case is not material. To be consistent, therefore, we certify to the supreme court the question whether:
In light of the court's recognition in Harris v. State, [ 645 So.2d 386 (Fla. 1994)], that sentencing is not a game in which one wrong move by the judge means immunity for the prisoner, is it still per se reversible error where a trial court orally pronounces departure reasons at sentencing but does not reduce them to writing until eight business days later?
PETERSON, C.J., and THOMPSON, J., concur.