VALERIE TRAINOR, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Valerie Trainor appealed her convictions for delivery of cocaine and possession of cocaine and marijuana, challenging the charges based on inconsistencies in the information and the trial court's sentencing departure. The court affirmed her convictions but remanded for resentencing because the trial court improperly departed from sentencing guidelines without valid reasons.
The convictions for delivery of cocaine and possession of cocaine were properly obtained because defendant pleaded guilty with full knowledge and consent despite the technical inconsistency in the information. However, the trial court improperly departed from sentencing guidelines because there was no valid plea agreement showing agreement to such departure, and departure based on another offense for which there was no conviction violates Rule 3.701(d)(11).
[1] A defendant who pleads guilty to an offense, participates in plea colloquy, and is sentenced consistent with the charge cannot later challenge the conviction based on a d…
[2] A trial court may not depart from sentencing guidelines based on a violation of a plea agreement that is not reflected in the plea colloquy or written plea of guilty.
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Join FLexlaw to unlock all legal intelligence“In the case at hand the proceedings against defendant were consistent with the caption of the information and were, with the full knowledge, participation, and consent of defendant, for the crimes for which she was convicted.”
Establishes that despite technical inconsistency in charging document, defendant's guilty plea was valid because she knowingly and consensually pleaded to the offenses in the caption.
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Join FLexlaw to unlock all legal intelligenceDefendant was charged with delivery of cocaine and possession of cocaine in violation of Florida Statutes section 893.13. The caption of the informati…
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PER CURIAM.
In these consolidated cases, defendant appeals from her convictions and sentencing for delivery of cocaine and possession of cocaine and marijuana. We affirm the convictions but remand for resentencing.
As her first point defendant contends that in one case she was yrongly convicted of both delivery of cocaine and possession of cocaine, violations of section 893.13(l)(a)(l) and 893.13(l)(e), Florida Statutes (1983). The basis for her contention is that, although the caption of the information charged her with delivery of cocaine and possession of cocaine in violation of section 893.13, the body of the information charged her with delivery of cannabis and possession of cocaine. Thus, she contends that the conviction for delivery of cocaine was erroneous. However, when pleading guilty defendant signed a form stating that she pleaded guilty to delivery of cocaine. Defendant’s attorney stated that defendant “wants to plead guilty to delivery of cocaine.” At the sentencing hearing it was stated that defendant had pleaded guilty to delivery of cocaine. No objection of the type made here was at any time made in the trial court.
Lewis v. State, 154 Fla. 825, 19 So. 2d 199 (1944), cited by defendant, is inapplicable. In Lewis a conviction was reversed because defendant had been charged and tried for an offense other than that shown on the form of conviction. The form of conviction mistakenly followed an erroneous caption on the information. In the case at hand the proceedings against defendant were consistent with the caption of the information and were, with the full knowledge, participation, and consent of defendant, for the crimes for which she was convicted. See State v. Fields, 390 So. 2d 128 (Fla. 4th DCA 1980).
Defendant also contends that the trial court erred in departing from the recommended sentencing guidelines range. We agree. The trial court gave as his reasons for the departure that the defendant violated the terms of her plea agreement by perjuring herself under oath before the state attorney and that by perjuring herself to the state attorney she jeopardized the state’s investigation and prosecution of a third party. The trial court’s order refers to defendant having first given a taped statement to the state attorney’s office about the drug activities of that third party and later, under oath to the state attorney, denying knowledge of matters she referred to in the taped statement.
The first reason for departure is insufficient. Neither the transcript of the plea colloquy nor the written plea of guilty contains any such plea agreement. See Banzo v. State, 464 So. 2d 620 (Fla. 2d DCA 1985). The trial court, when accepting defendant’s plea, stated that there were no plea negotiations.
Also, we conclude that the second reason is insufficient. We do not believe a reason for departure from the sentencing guidelines may validly include another offense for which there has been no conviction.
Rule 3.701(d)(ll) provides in part,
Reasons for deviating from the guidelines shall not include factors relating to prior arrests without conviction. Reasons for deviating from the guidelines shall not include factors relating to the instant offenses for which convictions have not been obtained.
If under the rule a prior arrest for which no conviction was obtained is not a suffi- dent reason for departure, it is at least difficult to perceive that another offense could be sufficient for which, so far as the record in this case shows, there was neither an arrest nor a conviction. Even if the trial court did not use the word “perjury” in a technical sense to mean a violation of chapter 887, Florida Statutes (1983), still the meaning was that defendant had committed another wrong for which defendant had been neither charged nor convicted.
Defendant’s convictions are affirmed, but we remand for resentencing within the presumptive sentence range under the guidelines.
CAMPBELL, A.C.J., and LEHAN and FRANK, JJ., concur.
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Citator
Cited By (20 total)
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Sloan v. State, 472 So. 2d 488 (Fla. 2d DCA 1985)…ve is an impermissible predicate upon which to sustain departure. We find neither a difference nor a distinction between the trial court’s characterizing a defendant’s testimony as a “lie” or stating that he committed “perjury.” In Trainor v. State, 468 So. 2d 484 (Fla. 2d DCA 1985), we condemned as a departure ground the trial court’s conclusion that the defendant had “perjured” himself during his testimony. Accord, Bowdoin v. State, 464 So. 2d 596 (Fla. 4th DCA 1985). Notwithstanding that we invalidate two…
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Pursell v. State, 483 So. 2d 94 (Fla. 2d DCA 1986)…or convicted of any prior trafficking charge in Florida or in his home state of Alaska. It was improper to depart from the guidelines on the basis of alleged crimes for which the appellant has not been either arrested or convicted. Trainor v. State, 468 So. 2d 484, 486 (Fla. 2d DCA 1985). In this case, the implication that appellant was a major drug smuggler can arise only from the large quantity of cocaine he had conspired to purchase, and the court has already used the quantity involved as a reason for depa…
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Felts v. State, 537 So. 2d 995 (Fla. 1st DCA 1988)…fleeing is an insufficient reason for departure, citing Carter v. State, 485 So. 2d 1292 (Fla. 4th DCA), rev. den., 494 So. 2d 1149 (Fla.1986), and that these reasons constituted various crimes of which he was not convicted, citing Trainor v. State, 468 So. 2d 484 (Fla. 2d DCA 1985), and Pursell v. State, 483 So. 2d 94 (Fla. 2d DCA 1986). He asserts that, according to the scoresheet, there were neither additional offenses at conviction nor a prior record. Appellant admits that his counsel stated at the senten…
Previewing 3 of 20 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Banzo v. State, 464 So. 2d 620 (Fla. 2d DCA 1985)
- Lewis v. State, 154 Fla. 825 (Fla. 1944)
- State v. Fields, 390 So. 2d 128 (Fla. 4th DCA 1980)
- Thompson v. Thompson, 390 So. 2d 128 (Fla. 4th DCA 1980)