STATE OF FLORIDA, APPELLANT,
v.
CURTIS E. SMITH, APPELLEE
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The trial court erred in departing below the recommended guidelines sentence without an evidentiary basis in the record. The defendant is not entitled to withdraw his guilty plea because it was entered 'open' and not as part of a plea bargain.
The defendant pleaded guilty, and the trial court departed below the recommended guidelines sentence. The state appealed the departure, and the defend…
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PER CURIAM.
The state appeals, contending the trial court erred in departing below the recommended guidelines sentence, following the defendant’s plea of guilty. The defendant disagrees but further argues that if the trial court erred, he should be able to withdraw his plea of guilty, citing State v. Walden, 476 So. 2d 771 (Fla. 3d DCA 1985) and Stanley v. State, 501 So. 2d 90 (Fla. 1st DCA 1987).
We hold that the trial court erred in departing below the guidelines sentence because its stated reason lacked any evidentiary basis in the record. See Tanner v. State, 468 So. 2d 505 (Fla.2d DCA 1985); Wyman v. State, 459 So. 2d 1118 (Fla. 1st DCA 1984). Accordingly, we reverse the sentence and remand for resentencing.
We further hold that the defendant is not entitled to withdraw his plea. While Walden contains no express rationale, it cites State v. Davis, 464 So. 2d 195 (Fla. 3d DCA 1985), which involved a plea bargain, as did Stanley. In this case, the defendant pleaded “open.” There is no record of any plea bargain; thus no reason — in our view — to permit withdrawal of the plea.
HERSEY, C.J., and GLICKSTEIN and GUNTHER, JJ., concur.
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Brown v. State, 585 So. 2d 350 (Fla. 4th DCA 1991)…t of Plea Form signed by appellant that states, “I understand that if the court accepts my plea to these charges, my sentence will be an open plea to the court.” Appellee relies on Homer v. State, 553 So. 2d 781 (Fla. 4th DCA 1989); State v. Smith, 507 So. 2d 1209 (Fla. 4th DCA 1987); and State v. Wilson, 395 So. 2d 520 (Fla. 1981). In Homer, this court held that a defendant was not entitled to withdraw his open plea of guilty because the plea was not negotiated based on any promises, nor was the defendant a…
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State v. Beason, 529 So. 2d 793 (Fla. 3d DCA 1988)…PER CURIAM. Because there is no evidence in the record to support the reasons given by the trial court for the departure sentence, the case must be remanded. State v. Smith, 507 So. 2d 1209 (Fla. 4th DCA 1987); Tanner v. State, 468 So. 2d 505 (Fla. 2d DCA 1985); Wyman v. State, 459 So. 2d 1118 (Fla. 1st DCA 1984). [*794] On remand the defendant may withdraw the guilty plea which was conditioned on the invalid sentence. State v. Castane…
Authorities Cited
- State v. Davis, 464 So. 2d 195 (Fla. 3d DCA 1985)
- Tanner v. State, 468 So. 2d 505 (Fla. 2d DCA 1985)
- Stanley v. State, 501 So. 2d 90 (Fla. 1st DCA 1987)
- Wyman v. State, 459 So. 2d 1118 (Fla. 1st DCA 1984)
- State v. Walden, 476 So. 2d 771 (Fla. 3d DCA 1985)