Albert PEASE, Petitioner, v. STATE of Florida, Respondent, 712 So. 2d 374

PER CURIAM. We review State v. Pease, 669 So.2d 314, 316 (Fla. 1st DCA 1996), in which the court certified the following question to be of great public importance: MAY A DOWNWARD DEPARTURE SENTENCE BE AFFIRMED WHERE THE TRIAL COURT ORALLY PRONOUNCED VALID REASONS FOR DEPARTURE AT THE TIME OF SENTENCING, BUT INADVERTENTLY FAILED TO ENTER CONTEMPORANEOUS WRITTEN REASONS? We have jurisdiction under

article V,

section 3(b)(4) of the Florida Constitution. We answer the question in the affirmative. Pease was convicted of several offenses and sentenced to incarceration followed by probation. While on probation, he was convicted of a misdemeanor battery. At a probation revocation hearing based upon the misdemeanor, Pease did not contest the fact that he had violated his probation. However, he presented substantial testimony of his good character and behavior from friends and fellow church members who professed the belief that his misdemeanor offense was a momentary aberration.

The sentencing guidelines provided for five to twelve years in the permitted sentencing range. The trial judge deviated from the guidelines and sentenced Pease to one year in the county jail, to run concurrent with the one-year sentence he already had received for the battery charge, to be followed by five years’ probation. Although discussed and noted, the trial judge failed to file a contemporaneous written order setting out the reasons supporting the downward departure sentence. Subsequently, the trial judge filed an order setting forth the reasons for his imposition of the downward departure sentence.

The judge noted that he was entering his order nunc pro tunc based upon handwritten draft notes made by him on the bench at the time of sentencing, which were not typed at that time because his judicial assistant was absent. The validity of the reasons is not at issue in this case. Believing itself to be constrained by prior decisions, the district court of appeal reversed the sentence based on the trial court’s failure to file contemporaneous written reasons in support of the downward departure. However; the court characterized its ruling as unfair and unjust and certified the question quoted above.

As noted in the opinion of the First District: It seems inequitable that a defendant would be required to spend a greater amount of time incarcerated as a result of an inadvertent error of an officer of the state, the trial judge. 669 So.2d at 316 (emphasis supplied). Subsequently, the Fourth District has issued an opinion agreeing with this statement from Pease and certifying the same question: ■ [W]e agree with the First District in State v. Pease, 669 So.2d 314 (Fla. 1st- DCA 1996), rev. granted, 676 So.2d 1369 (Fla. 1996), that the remedy of resentencing within the guidelines is “fundamentally unfair”.

It requires an offender to spend more time in prison, not because of anything done by the offender, but instead because of an inadvertent error by a state official, the sentencing judge. State v. Thomas, 696 So.2d 1290, 1291 (Fla. 4th DCA 1997). We agree with these views of the district courts, and hold that once it is established that there were valid reasons for sentencing the defendant below the guidelines explicated, at the time of sentencing, that sentence should not be affected by the unilateral mistake of “an officer of the state.” In San Martin v.

State, 591 So.2d 301 (Fla. 2d DCA 1991), review denied, 598 So.2d 78 (Fla.1992), the appellate court held that the trial court had concurrent jurisdiction during the appeal to enter a nunc pro tunc order containing reasons for departure replacing an earlier order lost or misfiled by the trial court clerk. Hence, the court held that an error made by the court clerk, rather than the court as involved herein, could be corrected by the entry of a subsequent order. In State v.

Salley, 601 So.2d 309 (Fla. 4th DCA 1992), the State appealed the imposition of a downward departure sentence on grounds that there were no written reasons for the trial court’s departure. ' Although recognizing that a written order had not been prepared to support the departure, the Fourth District nevertheless upheld the sentence on appeal, noting first that the trial court had orally announced on the record its reason for departure during the plea colloquy, and further stating that the defendant should not be penalized for the absence of a written order under facts very similar to those before us here.

The district court explained: After the trial court determined the downward departure, defense counsel told the court that she would have an appropriate order presented to the court that afternoon. No order is in the record, and there is no indication that one was submitted. Thus, just as in Smith, the trial court had exercised its discretion in sentencing and had delegated the ministerial act of preparation of the order. Appellant should not be penalized by defense counsel’s failure to follow through and prepare the order.

Although it was appellant’s court appointed counsel who was neglectful rather than the state, we believe that Smith is still- applicable. 601 So.2d at 310. The Fourth District followed this same rationale in State v. Hunter, 610 So.2d 115 (Fla. 4th DCA 1992), where it found that the. trial court’s failure to enter a written order stating its reasons for a downward departure until one week after sentencing did not warrant reversal.

The court emphasized that the defendant’s counsel had expressly requested the trial court to provide a contemporaneous written order, and concluded that “[t]he defendant was obviously relying on the trial court to enter the required order and he should not be penalized when the order is not timely filed.” 610 So.2d at 116. In both Salley and Hunter, the district court relied on our decision in Smith v. State, 598 So.2d 1063 (Fla.1992), which we conclude also controls the outcome here.

In Smith, we quashed the Third District’s decision below reversing the defendant’s downward departure sentence and remanding for resentencing under the guidelines where the absence of a contemporaneous, written order supporting the departure was solely the fault of the State. Id. at 1067. During the plea colloquy in which it imposed a downward departure sentence, the trial court in Smitk further directed the State to write on the defendant’s scoresheet that the downward departure wás based on Smith’s drug dependency.

Although the State objected to the downward departure, it agreed to prepare a scoresheet containing the court’s reason for departure as directed. However, the score-sheet ultimately prepared by the State did not contain the court’s reason for departure. Id. at 1064. Under these facts, we concluded: [T]he physical process of writing the reasons in this instance was nothing more than a ministerial act at the precise direction of the court, in the nature of specific dictation.

But for the State’s failure to timely prepare a scoresheet and comply with the court’s order, the reason for departure would have been contemporaneously written at the sentencing, and thereby valid within the meaning of Ree and Pope. Smith should not be penalized for the State’s failure to carry out the court’s timely and unambiguous instructions. Under these circumstances, we conclude that the district court erred by reversing and remanding for resentencing pursuant to Pope. We emphasize that nothing in this opinion is intended to recede from the essential holding of Ree.

As we stated in that opinion, fundamental principles of justice compel a court to carefully and thoroughly think through its decision when it restricts the liberty of a defendant beyond the period allowed in the sentencing guidelines. Requiring a court to write its reasons for departure at the time of sentencing reinforces the court’s obligation to think through its sentencing decision, and it preserves for appellate review a full and accurate record of the sentencing decision. 598 So.2d at 1067 (emphasis supplied). We conclude that this reasoning compels us to approve the sentence rendered herein.

In essence the defendant stands before us now as a victim of the trial court and the State’s neglect. As noted by the district court, the obligation to put the reasons for the downward departure in writing rested with the State, and, in this case, the State’s agent and officer, the trial court. No one disputes that the mistake here was that of the trial court, apparently due simply to neglect and inadvertence relating to the absence of a judicial assistant to complete the ministerial act of actually placing the reasons in a separate order.

Similarly, an obligation to follow through with the “ministerial act” discussed in Smith also rested with the trial court, and we conclude that the trial court’s failure in either instance cannot be placed at the doorstep of the helpless defendant. We recede from any prior holdings suggesting that the defendant must suffer the consequences of such a mistake despite the existence of valid reasons for the judge’s downward departure sentence at the time of sentencing.

There is a significant difference between this situation and those situations where the State itself complains about something the State was obligated to do in order to increase a defendant’s guideline’s sentence, i.e., the State’s obligation to see that written reasons are timely prepared and filed, if the State is going to punish the defendant more severely than the guidelines provide. Obviously, the State’s mistake cannot be used as an excuse for the State’s failure to do what the State itself was obligated to do.

We answer the certified question in the affirmative, quash the decision of the court below, and remand for proceedings consistent with this opinion. It is so ordered. KOGAN, C.J., and SHAW and ANSTEAD, JJ., concur. OVERTON, J., concurs with an opinion in which KOGAN, C.J., and ANSTEAD, J., concur. GRIMES, J., dissents with an opinion in which HARDING and WELLS, JJ., concur. WELLS, J., dissents with an opinion in which GRIMES and HARDING, JJ., concur. .

As noted in footnote 3 of the district court’s opinion: We would note that the state does not challenge the reasons stated for the downward departure, but only the fact that the written reasons were not entered at the time of the sentencing. Pease, 669 So.2d at 315 n. 3.' . In Jones v. State, 639 So.2d 28 (Fla.1994), for example, we reversed a downward departure, but we did so without prejudice to the defendant to withdraw her plea, thereby providing defendant with' another opportunity to secure a downward departure with appropriate written reasons.