THERESA ANDERSON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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A defendant challenged her guidelines departure sentence where the trial judge based the departure on the defendant's alleged dishonesty about her criminal history. The court reversed, holding that perjury is an impermissible reason for guidelines departure, and that a defendant's agreement to such a condition cannot confer authority on the court to impose an illegal sentence.
No. Perjury is an impermissible reason for guidelines departure, and a defendant's acquiescence to a condition that would authorize an illegal departure does not make the sentence legal or confer authority on the court to depart from the guidelines.
[1] A trial court is obligated to sentence within the guidelines unless it provides clear and convincing reasons for departure.
[2] A defendant's failure to appear for sentencing does not constitute a clear and convincing reason for departure from sentencing guidelines.
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Join FLexlaw to unlock all legal intelligence“perjury is an impermissible reason for departure from a guidelines recommended sentence”
Establishes the core legal principle that dishonesty about criminal history cannot justify guidelines departure
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Join FLexlaw to unlock all legal intelligenceThe defendant pleaded nolo contendere to two counts of grand theft. At the plea hearing, the trial judge placed the defendant under oath and warned he…
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DANAHY, Chief Judge.
The defendant challenges her guidelines departure sentence on the ground that the reason expressed by the trial judge for the departure was impermissible. We agree and reverse.
The defendant was charged with two counts of grand theft to which she entered pleas of nolo contendere. At the change of plea hearing, she was placed under oath and questioned by the trial judge regarding her prior convictions. The trial judge warned the defendant that if she had lied about her past record he would treat that lie as a reason for departure from the guidelines recommended sentence.
Apparently, the presentence investigation report revealed prior convictions in addition to those which the defendant admitted at the hearing. The sentencing guidelines scoresheet recommended a sentence of four and one-half to five and one-half years. The trial judge departed by sentencing the defendant to two consecutive five-year terms of imprisonment. He gave the following reason in writing:
The court has exceeded the recommended sentence guideline in that in recounting her criminal history the defendant lied. In accepting her plea of guilty the court told the defendant that if she lied about her past record that the court would consider it a sufficient reason to exceed guidelines. The court had agreed to a guidelines sentence if the defendant would be truthful about her criminal past but if not the court promised up to a maximum sentence.
First, we point out that perjury is an impermissible reason for departure from a guidelines recommended sentence. Neal v. State, 487 So. 2d 367 (Fla. 2d DCA 1986). The question in this case is whether the action of the trial judge in making truthfulness a condition of his promise to adhere to the guidelines elevates this reason to a proper reason for departure. In an analogous case, our supreme court has recently ruled that it does not.
In Williams v. State, 500 So. 2d 501 (Fla.1986), the trial judge informed the defendant that he would be sentenced within the guidelines under three conditions, one of which was that he appear for sentencing on a specified date. The defendant did not appear for sentencing and the trial judge imposed a departure sentence, giving as a reason the fact that the defendant had failed to appear for sentencing. This court upheld the departure sentence. Williams v. State, 471 So. 2d 201 (Fla. 2d DCA 1985). The supreme court quashed this court’s decision and remanded for resentencing. The court held that departing from the guidelines because the defendant has failed to appear is not permissible because it does not constitute a clear and convincing reason for departure. The court further held that a defendant’s “acquiescence” in the imposition of such a condition by the trial judge makes no difference and cannot confer authority on the court for a departure in such a situation. The court pointed out that a defendant cannot by agreement confer on the trial court the authority to impose an illegal sentence and stated that 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.
Following the supreme court’s decision in Williams v. State, we reverse in this case and remand for the imposition of sentence within the recommended guidelines range.
Reversed and remanded.
SANDERLIN, J., and BOARDMAN, EDWARD F., (Ret.) J., concur.
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Citator
Cited By
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Washington v. State, 510 So. 2d 355 (Fla. 2d DCA 1987)…departure. Williams v. State, 500 So. 2d 501 (Fla.1986). Similarly, a defendant’s agreement to allow the trial court to depart from the guidelines if he or she lies about prior criminal record is not a valid reason for departure. Anderson v. State, 503 So. 2d 388 (Fla. 2d DCA 1987) (citing Williams). The third reason, repeated probation and parole violations, is a valid reason for departure. Adams v. State, 490 So. 2d 53 (Fla.1986). Further, we conclude that the trial court’s fourth “reason” is, as recogniz…
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Davis v. State, 509 So. 2d 1329 (Fla. 2d DCA 1987)…[*1330] PER CURIAM. The material facts in this case are identical to those in Anderson v. State, 503 So. 2d 388 (Fla. 2d DCA 1987). For the reasons given in Anderson, we reverse the sentence in this case and remand for resen-tencing within the guidelines. RYDER, A.C.J., and THREADGILL, J., and PATTERSON, DAVID F., Associate Judge, concur.…
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Schurman v. State, 522 So. 2d 1026 (Fla. 2d DCA 1988)…m the guidelines — lying about his prior record — is invalid. This court has previously decided this issue in appellant’s favor. Smith v. State, 516 So. 2d 78 (Fla. 2d DCA 1987); Davis v. State, 509 So. 2d 1329 (Fla. 2d DCA 1987); Anderson v. State, 503 So. 2d 388 (Fla. 2d DCA 1987); Denson v. State, 493 So. 2d 60 (Fla. 2d DCA 1986). Accordingly, we reverse appellant’s sentence and remand for resentencing within the guidelines. See Shull v. Dugger, 515 So. 2d 748 (Fla.1987). Appellant’s second argument on a…
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
- Williams v. State, 500 So. 2d 501 (Fla. 1986)
- Williams v. State, 471 So. 2d 201 (Fla. 2d DCA 1985)
- Neal v. State, 487 So. 2d 367 (Fla. 2d DCA 1986)