STATE OF FLORIDA, APPELLANT,
v.
JOHN ROBERT MCCARTHY, APPELLEE
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A plea agreement cannot serve as a basis for downward departure from sentencing guidelines if the state is not a party to the agreement.
[1] A plea agreement can serve as a basis for departing from sentencing guidelines only if it is approved by the court and the state is a party to the agreement.
[2] A plea agreement specifying a permissible sentence constitutes a clear and convincing reason for departure from sentencing guidelines.
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Join FLexlaw to unlock all legal intelligenceThe defendant was convicted of burglary and grand theft, and the trial court departed downward from the recommended guidelines sentence based on a pur…
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PER CURIAM.
The appellee, John Robert McCarthy, was convicted of burglary of a dwelling and grand theft in violation, respectively, of sections 810.02 and 812.014, Florida Statutes (1985).
The guidelines scoresheet recommended 472 to 572 years of incarceration. The trial court, however, departed downward and sentenced McCarthy to 2 years of community control for the grand theft conviction, followed by 15 years probation imposed for the burglary conviction. The trial court’s written reason for departure stated “as per plea agreement — defendant waived any right to be sentenced under the guidelines if probation revoked.” The state unsuccessfully objected to the departure and appealed from the sentence imposed upon McCarthy.
This was not the type of plea agreement which can serve as a basis to depart the guidelines. A true plea bargain contemplates an agreement between the state and the defendant which is approved by the court. Fla.R.Crim.P. 3.171; ABA Standards, Pleas of Guilty §§ 3.1-3.3 (1968). Here, the state was not a party to the agreement.
A plea agreement that can serve as a clear and convincing reason for departure is one specifying a permissible sentence. Bell v. State, 453 So. 2d 478 (Fla. 2d DCA 1984). McCarthy agreed to allow the court to depart to an indeterminate extent, save as it would be limited by the statutory maximum, should he in the future violate the terms of his probation. We will not approve an agreement that frustrates sentencing consistent with the guidelines. Henry v. State, 498 So. 2d 1006 (Fla. 2d DCA 1986). “A defendant cannot by agreement confer on the court the authority to impose an illegal sentence. If a departure is not supported by clear and convincing reasons, the mere fact that a defendant agrees to it does not make it a legal sentence.” Williams v. State, 500 So. 2d 501 (Fla.1986).
We reverse the appellee’s sentence and remand for resentencing within the guidelines. The trial court may, however, depart for valid reasons. See, e.g., State v. Twelves, 463 So. 2d 493 (Fla. 2d DCA 1985).
GRIMES, A.C.J., and SCHEB and FRANK, JJ., concur.
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State v. Dreama Adea Bell, 854 So. 2d 686 (Fla. 5th DCA 2003)…is discussed below. Legitimate, Uncoerced Plea Bargain The state correctly argues that a “plea bargain” contemplates an agreement between the state and the defendant. See State v. Sawyer, 753 So. 2d 737, 738 (Fla. 2d DCA 2000); State v. McCarthy, 502 So. 2d 955 (Fla. 2d DCA 1987). Because Bell pled guilty to the violation of community control without any agreement from the state, this reason is not supported by substantial competent evidence. Sawyer, McCarthy. Capacity of Defendant to Appreciate Criminal…
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State v. Beck, 763 So. 2d 506 (Fla. 4th DCA 2000)…R.Crim. P. 3.171. Here, the plea was not entered pursuant to a plea agreement. Therefore, it was error for the trial court to depart from the guidelines on this basis. See also State v. Arvinger, 751 So. 2d 74 (Fla. 5th DCA 1999); State v. McCarthy, 502 So. 2d 955, 956 (Fla. 2d DCA 1987). Next, departing on the basis of impairment is prohibited by section 921.0016(5), Florida Statutes, which provides: A defendant’s substance abuse or addiction, including intoxication at the time of the offense, is not a mit…
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State v. Kennedy, 698 So. 2d 349 (Fla. 4th DCA 1997)…en the trial court and Kennedy without the State’s consent cannot support a downward departure from the guidelines. A “plea bargain contemplates an agreement between the state and the defendant which is approved by the court.” See State v. McCarthy, 502 So. 2d 955, 956 (Fla. 2d DCA 1987). In this case, the State did not participate in the plea agreement and repeatedly objected to the sentence imposed upon Kennedy. When the State is not a party to a plea agreement, the agreement cannot serve as a basis for a d…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Williams v. State, 500 So. 2d 501 (Fla. 1986)
- Bell v. State, 453 So. 2d 478 (Fla. 2d DCA 1984)
- State v. Twelves, 463 So. 2d 493 (Fla. 2d DCA 1985)
- Henry v. State, 498 So. 2d 1006 (Fla. 2d DCA 1986)