5D01-526 Beck v. State

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State: Florida

Court: Florida Fifth District Court

Docket No: 5D01-526

Case Date: 04/01/2002

Preview:IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT JANUARY TERM 2002

JEROME BECK, Appellant, v. CASE NO. 5D01-526

STATE OF FLORIDA, Appellee. / Opinion filed April 5, 2002 Appeal from the Circuit Court for Volusia County, David A. Monaco, Judge. James B. Gibson, Public Defender, and Michael S. Becker, Assistant Public Defender, Daytona Beach, for Appellant. Robert A. Butterworth, Attorney General, Tallahassee, and Denise O. Simpson, Assistant Attorney General, Daytona Beach, for Appellee. PERRY, B., Associate Judge. The defendant appeals from criminal convictions and sentences for aggravated battery, felony driving under the influence, and felony failure to appear. The defendant entered pleas of no contest to the charges. The trial court imposed a departure sentence of eight years incarceration on the aggravated battery charge followed by five years probation and concurrent departure sentences of five years imprisonment each on the felony driving

under the influence and failure to appear charges. This court has jurisdiction pursuant to Florida Rule of Appellate Procedure 9.030(b)(1)(A). The trial record established the following facts. The defendant, Jerome Beck, was arrested on June 28, 1991, for aggravated battery with a motor vehicle after running his vehicle into a motorcycle and its rider, Terry Herzee, on Ridgewood Avenue in Daytona Beach. The defendant, on October 8, 1991, was charged by information with aggravated battery and driving under the influence resulting in serious bodily injury. A motion to withdraw as counsel filed in the record revealed that the defendant' s counsel lost contact with the defendant after " mid-September, 1991."A capias for defendant' s arrest was issued by the trial court on December 9, 1991. On October 6, 2000, the defendant was arrested by U. S. Customs upon his entry into the United States from Germany. The defendant entered pleas of no contest to both charges contained in the information and a felony failure to appear charge for his failure to appear for a court date in 1991. At his sentencing hearing on February 8, 2001, the trial court heard at length from several of the victim' s family members, and reviewed evidence in the form of videotapes reflecting the victim' s life before and after the incident. The evidence reflected the victim was " completely normal" and " leading a full life" before the incident. After the incident and a resulting three month coma, however, the victim emerged from the coma confined to a wheelchair and unable to bathe himself; he had to live with family members so that they could take care of him. Although at the time of the sentencing hearing the victim was able to walk and dress himself, his condition had reached a plateau and the brain injury he had suffered was permanent. As the victim' s mother put it: -2-

At the scene of the accident Terry' s life as we knew it was over . . . . They lost him at the accident, I was told, and the paramedics brought him back. With a lot of good doctors and nurses and therapist, a lot of work from his family, he has progressed to what you can see today. He will never be able to fish or hunt or drive or do the things for himself that he used to do. The state informed the court that the defendant' s blood-alcohol content was .15 at the time of the incident. The trial court also learned that the defendant had fled to Germany in 1991 and was working for Amazon.com when he was apprehended in 2000. According to the 1991 score sheet, a permitted sentence could range from community control up to four and one-half years of incarceration. The state argued for an upward departure, which had been recommended by the PSI officer, and the trial court followed that recommendation. The trial judge stated: This is a difficult matter to be concerned with. The reason it is difficult is because you, by an act ten years ago, essentially destroyed the life of one man and ruined the life of his family. In response to that, you' ve decided to take off; you avoided responsibility by fleeing to Germany. It was only through accident that you were recovered when you snuck back in this country. I just don' t have a lot sympathy for you, I really do not. As a result I' m going to upwardly depart, the grounds being the victim suffered extraordinary physical or emotional trauma, permanent physical injury, Ground No. 1. I' m going to upwardly depart because of the fleeing. The trial court then imposed a departure sentence and the defendant filed a timely notice of appeal. -3-

On June 22, 2001, four months after the sentence had been imposed, the defendant, pursuant to Florida Rule of Criminal Procedure 3.800(b), filed a motion with the trial court to correct a sentencing error. In that motion, the defendant argued that no written reasons for the upward departure sentence were ever filed and thus his sentence should be reversed and a guidelines sentence imposed. After a hearing on the motion, the trial court rejected the defendant' s argument, confirmed the original sentence, and filed its written reasons for the upward departure. ISSUE ONE The first issue presented by the defendant is whether the trial court erred in imposing a departure sentence without filing written reasons for the departure. The defendant complains that any departure sentence had to be accompanied by written reasons explaining the departure, and the trial court initially failed to do so here. The defendant contends that the trial court could not simply revisit and reimpose the same departure sentence via the Rule 3.800(b) motion and enter the written reasons, but rather the trial court had to revisit the sentence and reduce it to a guideline sentence. Whether it is lawful for a trial court to impose a departure sentence without entering written reasons for the departure is a question of law and thus must be reviewed de novo. Currently, by statute and case law, a trial court is required to enter written reasons for an upward departure sentence within seven days of sentencing.

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