STATE OF FLORIDA, APPELLANT,
v.
THOMAS WAGNER, APPELLEE
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Florida appealed the sentencing of Thomas Wagner for felony failure to appear after his capture as a fugitive. The court reversed because the trial court failed to prepare a sentencing scoresheet and provide written reasons for departing from the guidelines, and no actual plea bargain supported the concurrent sentence imposed.
The court reversed because: (1) no valid plea bargain existed to justify departure from the guidelines; (2) the trial court failed to prepare a required sentencing scoresheet; and (3) the court failed to enter written reasons supporting the departure as required by Florida Rules of Criminal Procedure.
[1] A plea bargain may constitute a clear and convincing reason for a departure from sentencing guidelines.
[2] A trial court cannot base a departure from sentencing guidelines on a plea bargain that was not established in the record.
Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“A plea bargain may constitute a clear and convincing reason for a departure from the guidelines.”
Establishes the legal standard allowing guideline departures based on plea agreements.
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Join FLexlaw to unlock all legal intelligenceIn 1981, Wagner was sentenced to ten years for importing marijuana, a sentence affirmed on appeal in 1983. Wagner failed to appear to serve his senten…
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PER CURIAM.
In 1981, Thomas Wagner was sentenced to ten years for importing marijuana. He appealed and, in 1983, this court affirmed. Smith v. State (Thomas Wagner), 438 So. 2d 10 (Fla. 2d DCA 1983). Wagner failed to appear to serve his sentence and remained a fugitive until 1985. Upon his recapture, he was charged with the felony of failing to appear to which he pled guilty on the understanding that he would receive a two-year sentence to run concurrently with the ten-year marijuana sentence. The court imposed the two-year concurrent sentence. This constituted a departure from the recommended guidelines range of any nonstate prison sanction. We reverse.
A plea bargain may constitute a clear and convincing reason for a departure from the guidelines. Bell v. State, 453 So. 2d 478 (Fla. 2d DCA 1984). The record in this case, however, does not support Wagner’s contention that he and the state ever struck an agreement that Wagner would receive a two-year concurrent sentence in exchange for his guilty plea. Thus, there was no plea bargain upon which the trial court could base a departure in this case.
There are additional deficiencies in the record which require our reversal. While it appears that the presumptive guidelines range was “any nonstate prison sanction,” no scoresheet was prepared. Further, no written reasons supporting a departure were ever entered by the court. Rule 3.701(d)(1) and (11), Florida Rules of Criminal Procedure, require the preparation of a scoresheet and the entry of written reasons for any departure. Consequently, we reverse for resentencing in accord with State v. Jackson, 478 So. 2d 1054 (Fla.1985), Kennedy v. State, 490 So. 2d 195 (Fla. 2d DCA 1986), and Myrick v. State, 461 So. 2d 1359 (Fla. 2d DCA 1984), for preparation of a scoresheet and a written order indicating the court’s clear and convincing reasons for its departure sentence.
We further comment that since Wagner has commenced service of his sentence, he may - not be resentenced to a greater term, of imprisonment. Such a sentence would constitute double jeopardy. Troupe v. Rowe, 283 So. 2d 857 (Fla.1973); Hinton v. State, 446 So. 2d 712 (Fla. 2d DCA 1984).
Reversed and remanded for resentencing.
DANAHY, C.J., and CAMPBELL and LEHAN, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
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Trotter v. State, 774 So. 2d 924 (Fla. 5th DCA 2001)…to do so would constitute a double jeopardy violation. See Berry v. State, 547 So. 2d 1273, 1274 (Fla. 1st DCA 1989) (finding that the court can not impose a greater sentence once the defendant starts to serve an original sentence); State v. Wagner, 495 So. 2d 283, 284 (Fla. 2nd DCA 1986) (stating “[sjince Wagner has commenced service of his sentence, he may not be re-sentenced to a greater term of imprisonment. Such a term would constitute double jeopardy.”). Accordingly, Trotter’s sentence is vacated and t…
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Gonzalez v. State, 596 So. 2d 711 (Fla. 3d DCA 1992)…s case and sentence which had been imposed could not [*712] thereafter be increased (as the second assistant state attorney’s position would do) in violation of defendant’s constitutional guaranty not be twice placed in jeopardy.”); State v. Wagner, 495 So. 2d 283, 284 (Fla. 2d DCA 1986) (“[Sjince Wagner has commenced service of his sentence, he may not be resentenced to a greater term of imprisonment. Such a sentence would constitute double jeopardy. Troupe v. Rowe, 283 So. 2d 857 (Fla.1973); Hinton v. State…
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Gartrell v. State, 609 So. 2d 112 (Fla. 4th DCA 1992)…se and [the] sentence which had been imposed could not thereafter be increased (as the second assistant state attorney’s position would do) in violation of defendant’s constitutional guaranty not [to] be twice placed in jeopardy.”); State v. Wagner, 495 So. 2d 283, 284 (Fla. 2d DCA 1986) (“[S]ince Wagner has commenced service of his sentence, he may not be resentenced to a greater term of imprisonment. Such a sentence would constitute double jeopardy. Troupe v. Rowe, 283 So. 2d 857 (Fla.1973); Hinton v. State…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. Jackson, 478 So. 2d 1054 (Fla. 1985)
- Flazell Troupe v. The Honorable Ellen Morphonios Rowe & the Honorable Paul Baker, 283 So. 2d 857 (Fla. 1973)
- Bell v. State, 453 So. 2d 478 (Fla. 2d DCA 1984)
- Myrick v. State, 461 So. 2d 1359 (Fla. 2d DCA 1984)
- Hinton v. State, 446 So. 2d 712 (Fla. 2d DCA 1984)
- Smith v. State, 438 So. 2d 10 (Fla. 2d DCA 1983)
- Kennedy v. State, 490 So. 2d 195 (Fla. 2d DCA 1986)