STATE OF FLORIDA, APPELLANT,
v.
LINDA DEVINE, APPELLEE
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The State appealed a downward departure from sentencing guidelines imposed on Linda Devine for violating community control. The trial court gave two reasons for the below-guideline sentence: a prior plea agreement and disagreement with the severity of the guidelines range. The appellate court affirmed, holding that while disagreement with the guidelines is not a valid basis for departure, the prior plea agreement constituted a valid and clear reason to mitigate the sentence.
A trial court may not deviate from guidelines based on disagreement with the sentencing range, even if the court finds the result disproportionate. However, a trial court may consider the state's prior agreement to a below-guidelines sentence as a clear and convincing reason for downward departure during resentencing. Because a valid reason for departure existed, the sentence was properly affirmed.
[1] A trial court may not deviate from sentencing guidelines based solely on disagreement with the sentencing range or a belief that the sentence is disproportionate to the c…
[2] A prior agreement by the state to a sentence below the guidelines range can serve as a valid basis for a downward departure during resentencing.
Previewing 2 of 4 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“It is clear that a trial judge may not deviate from the guidelines because of disagreement with the sentencing range, even if the court is satisfied that the result is disproportionate in relation to the nature of the crime committed.”
Establishes the fundamental principle that judicial dissatisfaction with guideline ranges cannot justify downward departure.
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Join FLexlaw to unlock all legal intelligenceDevine was originally sentenced pursuant to a negotiated plea stipulation that resulted in a sentence below the guidelines. Her community control port…
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STONE, Judge.
This is an appeal by the state from a sentence imposed below the range provided in the sentencing guidelines after the trial court found the defendant violated her community control. The original sentence was entered pursuant to a negotiated plea stipulation that had been accepted by the court. The community control portion of the sentence was subsequently modified, without objection by the state, by the imposition of fifty hours of community service work. The defendant then again violated her community control, and was sentenced to six years in prison, although the guidelines range is nine to twelve years. The reasons given for the downward deviation were the previous agreement by the state to a sentence below the guidelines, and the severity of the guidelines sentence relative to the nature of the violations. The first of these reasons is a valid basis to deviate, the second is not.
It is clear that a trial judge may not deviate from the guidelines because of disagreement with the sentencing range, even if the court is satisfied that the result is disproportionate in relation to the nature of the crime committed. See Williams v. State, 492 So. 2d 1308 (Fla.1986); Scurry v. State, 489 So. 2d 25 (Fla.1986); State v. Baker, 498 So. 2d 1031 (Fla. 1st DCA 1986); Whitfield v. State, 490 So. 2d 1358 (Fla. 5th DCA 1986); State v. Caride, 473 So. 2d 1362 (Fla. 3d DCA 1985); State v. Davis, 464 So. 2d 195 (Fla. 3d DCA 1985). Thus, this reason was an improper basis for departure.
In this case, a valid downward deviation occurred pursuant to a plea bargain when the defendant was initially sentenced. There is no reason why a trial court may not consider during resentencing the state’s prior agreement to a sentence of probation or community control as a clear and convincing reason to mitigate. Cf. State v. Collins, 482 So. 2d 388 (Fla. 5th DCA 1985).
Although one of the two reasons given by the trial court for departure was improper, we need not apply the harmless error test set forth in Albritton v. State, 476 So. 2d 158 (Fla.1986). In Scott v. State, 508 So. 2d 335 (Fla.1987), the supreme court ruled that where there is a clear and convincing reason given for departure, and another reason given is the trial judge’s dissatisfaction with the extent of the punishment, the latter reason is to be considered the trial judge’s written conclusion that departure is necessary based on the valid reason given in the departure order. Therefore, the judgment and sentence below are affirmed.
DOWNEY and ANSTEAD, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (11 total)
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Domingo Antonio Madrigal v. State, 545 So. 2d 392 (Fla. 3d DCA 1989)…those cases which hold that the prosecution’s agreement alone is sufficient to constitute a clear and convincing reason justifying a sentence lower than the one required by applying the legislatively mandated sentencing guidelines. State v. Devine, 512 So. 2d 1163, 1164 (Fla. 4th DCA 1987) (“valid downward deviation occurred pursuant to a plea bargain”), pet. for review denied, 519 So. 2d 988 (Fla.1987); State v. Collins, 482 So. 2d 388 (Fla. 5th DCA 1985) (no abuse of judicial discretion in sentencing below…
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Franquiz v. State, 682 So. 2d 536 (Fla. 1996)…ncing. Neither do we find that an initial agreed-upon downward departure can never be a valid reason for a revocation downward departure. Rather, we approve the holdings in State v. Nickerson, 541 So. 2d 725 (Fla. 1st DCA 1989), and State v. Devine, 512 So. 2d 1163 (Fla. 4th DCA 1987), that a trial court may consider the State’s prior agreement for a downward departure as a factor during resentencing. Therefore, a prior downward departure is sometimes a factor but never a guarantee for a subsequent downward d…
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State v. Nickerson, 541 So. 2d 725 (Fla. 1st DCA 1989)…urred pursuant to a plea bargain when the defendant was initially sentenced, “[t]here is no reason why a trial court may not consider during resentencing the State’s prior agreement ...” as a clear and convincing reason to mitigate. State v. Devine, 512 So. 2d 1163 (Fla. 4th DCA 1987). Nevertheless, we cannot determine from the wording of the trial court’s reasons for departure whether the court was in fact considering the State’s prior agreement as a reason to depart or felt constrained by it. Because the co…1 / 2
Previewing 3 of 11 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- City OF Atl. Beach v. Bull, 476 So. 2d 158 (Fla. 1985)
- Albritton v. State, 476 So. 2d 158 (Fla. 1985)
- Scurry v. State, 489 So. 2d 25 (Fla. 1986)
- Williams v. State, 492 So. 2d 1308 (Fla. 1986)
- Scott v. State, 508 So. 2d 335 (Fla. 1987)
- State v. Collins, 482 So. 2d 388 (Fla. 5th DCA 1985)
- State v. Caride, 473 So. 2d 1362 (Fla. 3d DCA 1985)
- State v. Baker, 498 So. 2d 1031 (Fla. 1st DCA 1986)
- State v. Davis, 464 So. 2d 195 (Fla. 3d DCA 1985)
- Whitfield v. State, 490 So. 2d 1358 (Fla. 5th DCA 1986)