BOBBY AMOS DALLAS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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A departure sentence is invalid if the reasons for departure are factually based on charges that were dropped as part of a plea agreement.
Bobby Dallas pleaded no contest to several charges as part of a plea agreement where other charges were nol prossed. The state recommended a forty-yea…
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UPCHURCH, Chief Judge.
Bobby Dallas appeals from a sentence imposed after a negotiated plea. Dallas had been charged with kidnapping, robbery, two counts of aggravated assault, second degree grand theft, two counts of attempted first degree murder, two counts of shooting into a building and use of a firearm while committing or attempting to commit a felony.
Under the plea agreement, Dallas pleaded no contest to kidnapping, robbery, aggravated assault and use of a firearm while committing a felony and in return the state nol prossed the remaining charges. There was no agreement as to any particular sentence, and the state specified that it would recommend a sentence of forty years which exceeded the recommended guideline sentence of nine to twelve years imprisonment.
The court imposed a forty year sentence, giving as its reasons:
Defendant jeopardized safety of numerous people by driving his vehicle in excess of 85 m.p.h. down public highways while being pursued by police and fired his weapon at a Florida Highway Patrol trooper during the chase by police officers. The shot penetrated an occupied mobile home creating an extreme risk to the physical safety of both citizens and law enforcement officers.
This departure is invalid since the reasons were factually based on the charges which were dropped as part of a plea agreement. Cummings v. State, 489 So. 2d 121 (Fla. 1st DCA, 1986); Baxter v. State, 488 So. 2d 647 (Fla. 5th DCA, 1986).
REVERSED and REMANDED for re-sentencing.
DAUKSCH and ORFINGER, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
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Felts v. State, 537 So. 2d 995 (Fla. 1st DCA 1988)…e circumstances giving rise to the dropped charges. However, in Cummings v. State, 489 So. 2d 121 (Fla. 1st DCA 1986), the court held that reference to charges dismissed as a condition of the plea was precluded by the rule. See also Dallas v. State, 490 So. 2d 1362 (Fla. 5th DCA 1986), in which the court held that danger to others caused by a high speed chase and shooting at police (the shot penetrated an occupied mobile home) would not support a departure sentence, because it was factually based on charges of…
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Berry v. State, 511 So. 2d 1075 (Fla. 1st DCA 1987)…ent from the allegations of the information — which were nolle prossequied by the state. It has been held that acts constituting offenses which were dropped as part of a plea agreement cannot be used to support a departure sentence. Dallas v. State, 490 So. 2d 1362 (Fla. 5th DCA 1986); Baxter v. State, 488 So. 2d 647 (Fla. 5th DCA 1986); Cummings v. State, 489 So. 2d 121 (Fla. 1st DCA 1986); Padgett v. State, 497 So. 2d 724 (Fla. 1st DCA 1986); McMillan v. State, 478 So. 2d 1195 (Fla. 4th DCA 1985); and Rease…
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Chenard v. State, 510 So. 2d 363 (Fla. 3d DCA 1987)…defendant’s crime involved an unfactored pattern of “violence” is belied both by the fact that the charge that the defendant was criminally responsible for an assault during the burglary was dropped as a part of the plea agreement, Dallas v. State, 490 So. 2d 1362 (Fla. 5th DCA 1986), and because, in fact, a co-defendant and not Chenard was solely responsible for the assault which was the only violence in the case. 4. It is plainly impermissible to depart on the final ground stated by the lower court that “t…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Wong v. NEW Prospect Enters., Inc., 488 So. 2d 647 (Fla. 5th DCA 1986)
- Cummings v. State, 489 So. 2d 121 (Fla. 1st DCA 1986)