RICHARD JAMES BELL, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Richard Bell appeals a five-year sentence for possession of a short-barreled shotgun, arguing the trial judge imposed a sentence exceeding the guideline range. The court affirmed, holding that a plea bargain establishing a sentencing cap constitutes sufficient grounds for departing from sentencing guidelines.
The court held that a plea bargain specifying a permissible sentence constitutes clear and convincing reasons for departing from the guideline presumptive sentence, and the trial judge properly sentenced Bell according to the plea bargain cap.
[1] A trial court may depart from sentencing guidelines when a plea bargain specifies the permissible sentence.
[2] A plea bargain, even when sentencing guidelines become available, remains a binding contract between the defendant and the state.
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Join FLexlaw to unlock all legal intelligence“We are convinced, however, that a departure from the guidelines is clearly warranted when there is a plea bargain which specifies the permissible sentence.”
Establishes that a plea bargain capping the sentence provides clear and convincing reasons to depart from guideline ranges.
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Join FLexlaw to unlock all legal intelligenceBell was charged with possession of a short-barreled shotgun and firearm possession by a convicted felon. He negotiated a plea agreement whereby he pl…
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CAMPBELL, Judge.
Appellant appeals his sentence for a term of five years upon his plea of guilty to the offense of possession of a short-barreled shotgun in violation of section 790.221, Florida Statutes (1981). His sole point on appeal is that the trial judge erred in sentencing appellant to a more severe sentence than the range indicated as a recommended sentence on the guideline score sheet prepared in accordance with Florida Rule of Criminal Procedure 3.701(d). We affirm.
Appellant was charged by information filed March 25, 1983, with one count of possession of a short-barreled shotgun in violation of section 790.221, and a second count of possession of a firearm by a convicted felon in violation of section 790.23, Florida Statutes (1981). Appellant pled not guilty.
On August 15, 1983, appellant appeared before the trial judge with his court-appointed counsel who announced to the court that appellant desired to change his plea. The following colloquy then took place before the trial judge between assistant state attorney, Volz, and defense counsel, Kahle:
MR. VOLZ: He will be pleading guilty to possession of a short-barreled shotgun under one count, we will nolle prosse the other one with the understanding he will get five years.
MR. KAHLE: Your Honor, we’re here on a change of plea in State versus Bell, pursuant to negotiations with the State Attorney’s Office the Defendant has agreed to enter a plea of guilty to count one of the information, which is possession of a short-barreled shotgun. The State has agreed to nolle prosse count two.
It’s the Defendant’s further understanding that neither the State nor the Court on its own motion would invoke the provision of the habitual offender statute. The maximum term of prison the Defendant would be subjecting himself to by his plea is five years.
The Defendant has been advised by entering this plea he’s waiving his right to a jury trial, self-incrimination, and the right to confront his accusers.
The court then proceeded to determine that the plea was freely and voluntarily entered, and that appellant understood the consequences of his plea. The court then ordered a pre-sentence investigation and continued sentencing pending receipt of that investigation.
On October 10,1983, appellant was again brought before the trial judge for sentencing in regard to his plea bargain. Through his same court-appointed counsel, appellant elected to be sentenced pursuant to sentencing guidelines. The trial court acknowledged that “He will be sentenced at his selection. He will be sentenced under the sentencing guidelines. I would point out, however, that the Court of course may depart from those guidelines if there are sufficient reasons for doing so.” Defense counsel responded that he and appellant were aware of that, and then argued matters in mitigation.
The state responded, arguing that the pre-sentence investigation showed some twenty-two incidents which normally could not be considered in departing from the guidelines, but further pointing out the circumstances of the plea bargain. Defense counsel argued that the plea bargain was not for an agreed-to sentence of five years, but a maximum cap on sentencing at five years. The trial court acknowledging the plea bargain and the five-year cap, announced that because of it he was departing from the sentencing guidelines and proceeded to sentence appellant to the five-year maximum allowed by the plea bargain.
While Rule 3.701(d)ll allows departure from the presumptive sentence of the guidelines for clear and convincing reasons, it does not delineate what those clear and convincing reasons are. We are convinced, however, that a departure from the guidelines is clearly warranted when there is a plea bargain which specifies the permissible sentence.
Plea bargains are still encouraged by Florida Rule of Criminal Procedure 3.171(a). State ex rel. Miller v. Swanson, 411 So. 2d 875 (Fla. 2d DCA 1981). The appellant was bound by his contract. Merely because of the availability of selecting the application of sentencing guidelines having intervened as of October 1, 1983, does not make the plea bargain contract void. It is of note that had appellant not elected application of Rule 3.701, he would have been subject to parole. Having voluntarily elected the application of Rule 3.701, however, removed the possibility of parole.
Affirmed.
SCHEB, A.C.J., and LEHAN, J., concur.
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Mischler v. State, 458 So. 2d 37 (Fla. 4th DCA 1984)…2d 551 (Fla. 1st DCA 1984). Mere failure to appear insufficient for departure Harms v. State, 454 So. 2d 689 (Fla. 1st DCA 1984). Agreement as to sentence sufficient for departure Key v. State, 452 So. 2d 1147 (Fla. 5th DCA 1984); Bell v. State, 453 So. 2d 478 (Fla. 2d DCA 1984); Green v. State, 460 So. 2d 378 (Fla. 2d DCA 1984); Harrington v. State, 455 So. 2d 1317 (Fla. 2d DCA 1984). Judicial discretion not usurped by guidelines Manning v. State, 452 So. 2d 136 (Fla. 1st DCA 1984); . Weems v. State,…
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Domingo Antonio Madrigal v. State, 545 So. 2d 392 (Fla. 3d DCA 1989)…recommend a sentence less than that provided by section 893.135(l)(b)(2), Florida Statutes (1985). (c) Finally, again reverting to the private contract model of a plea bargain like this, see Brown v. State, 367 So. 2d 616 (Fla.1979); Bell v. State, 453 So. 2d 478 (Fla. 2d DCA 1984), we note that if Madrigal had lived up to his end, the state itself would have been estopped to claim that it could not recommend and the court could not fail to impose the mandatory sentence. See King, 373 So. 2d at 78. Surely, t…1 / 2
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State v. Collins, 482 So. 2d 388 (Fla. 5th DCA 1985)…2d 31 (Fla. 1st DCA 1985) (plea agreement is proper predicate for disregarding general guidelines restriction); Scott v. State, 465 So. 2d 1359 (Fla. 5th DCA 1985) (departure from guidelines based on prior plea agreement was proper); Bell v. State, 453 So. 2d 478 (Fla. 2d DCA 1984) (departure from guidelines clearly warranted when there is plea bargain which specifies permissible sentence); Key v. State, 452 So. 2d 1147 (Fla. 5th DCA 1984) (negotiated plea is clear and sufficient reason for departure) rev. d…
Previewing 3 of 29 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. Honorable Maynard Swanson, 411 So. 2d 875 (Fla. 2d DCA 1981)