On October 9th, the Florida Supreme Court clarified whether a trial court may impose a sentence on remand that departs from the Criminal Punishment Code where the trial judge failed to comply with the requirements of section 775.082(10), Fla. Stat. mandating the filing of written findings, both at the original sentencing and in response to the defendant’s motion under rule 3.800, Fla. R. Crim. P. Bryant v. State (SC12-1507). This case presents the first time the Court has considered the propriety of upward departure sentences after a court’s failure to provide written rationale since the CPC was enacted.

Bryant, found guilty of petit theft and felony petit theft, argued that section 775.082(10), Fla. Stat. (2009), requires a judge to enter a written order finding that imposition of a non-prison sentence presents a danger to the public, and that failure to comply with the written finding requirement, even after a rule 3.800(b)(2) motion raising the issue, precludes the trial court from imposing an enhanced departure sentence on remand. The State argued that resentencing is an entirely new proceeding where the trial court may depart so long as it complies with the statute.

The Second District held that because the trial court did not file written reasons to support the departure sentence, none were deemed invalid. Bryant v. State, 93 So. 3d 381 (Fla. 2d DCA 2012). The Florida Supreme Court reversed the decision of the Second District, and followed its earlier decision in Pope v. State, 561 So.2d 554 (Fla.1990), which equated the failure to provide written reasons with the failure to provide a valid reason for such a departure.

Thus, the Florida Supreme Court quashed the decision of the Second District Court in Bryant and approved the decision of the Fifth District Court in Goldberg v. State, 76 So. 3d 1072 (Fla. 5th DCA 2011), and held that a trial court may not impose a sentence that departs from the CPC on remand where the trial judge failed to file the appropriate written findings required by section 775.082(10), Fla. Stat. even if evidence in the record might support findings of fact to justify an upward departure.