State v. Lazier
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DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
January Term 2011
STATE OF FLORIDA,
Appellant,
v.
WILSON LAZIER, JR.,
Appellee.
No. 4D09-4695
[January 19, 2011]
HAZOURI, J.
The State of Florida appeals from a downward departure sentence
imposed upon Wilson Lazier. We reverse and remand and direct the trial
court to sentence Lazier within the sentencing guidelines.
Lazier was charged by information with the purchase of cocaine and
resisting an officer without violence. Initially Lazier pled not guilty, but
pursuant to a negotiated plea, he entered a guilty plea to the purchase of
cocaine. The resisting charge was dismissed. Lazier was sentenced to
eighteen months probation. The guidelines scoresheet for Lazier showed
he scored 34.2 months as the lowest permissible sentence with a fifteen
year maximum sentence.
An Affidavit of Violation of Probation was filed against Lazier charging
him with failing to report; failing to remain at liberty without violating the
law by operating a motor vehicle with an expired registration of more
than six months; driving a vehicle with an unassigned tag; and failing to
live and remain at liberty without violating the law by committing a
simple battery.
A hearing on the violation of probation was held and the trial court
found Lazier to have violated his probation and downwardly departed
from the guidelines in sentencing him to six months in the Palm Beach
County Jail. The State objected and asked for a written order stating the
reasons why the court downwardly departed. The trial court failed to
enter an order with written reasons for the downward departure.
In determining to downwardly depart, the court orally stated:
Because of the nature of the violation I am going to
downwardly depart from the Guidelines. I don’t think he’s a
probation candidate. I don’t think that’s going to do him any
good; b u t I am going to downwardly depart from the
Guidelines and sentence him to six months in the Palm
Beach County Jail.
The State argues that the trial court failed to submit a written basis
for departure and that its oral basis for departure was not a valid reason
for departure under section 921.0026(2), Florida Statutes (2009). Lazier
concedes that the State is correct in its assertion and that the decision
should be reversed. However, Lazier argues that because his attorney
indicated three possible bases for a downward departure sentence at
sidebar and the trial court indicated an intention to depart downward,
this court should remand for a re-sentencing hearing at which the trial
court should be permitted to depart if it finds a legally sufficient reason
to do so. We disagree.
“[W]hen an appellate court reverses a departure sentence because
there were no written reasons, the court must remand for resentencing
with no possibility of departure from the guidelines.” See Pope v. State,
561 So. 2d 554, 556 (Fla. 1990); see also State v. Dunn, 9 So. 3d 666
(Fla. 1st DCA 2009). Because the trial court in the instant case failed to
provide written reasons for its departure and the oral basis for departure
was not a valid reason, we reverse and remand for the trial court to
resentence Lazier within the appropriate sentencing guidelines.
Reversed and Remanded With Directions.
DAMOORGIAN and GERBER, JJ., concur.
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Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; Amy L. Smith, Judge; L.T. Case No. 2008CF010888AXX.
Pamela Jo Bondi, Attorney General, Tallahassee, a n d Heidi L.
Bettendorf, Assistant Attorney General, West Palm Beach, for appellant.
Carey Haughwout, Public Defender, and Anthony Calvello, Assistant
Public Defender, West Palm Beach, for appellee.
-2-
Not final until disposition of timely filed motion for rehearing.
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