NEAL SMITH, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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A trial court cannot impose an otherwise illegal sentence by virtue of a defendant's agreement to sentencing conditions, and a defendant's failure to appear or untruthfulness are not clear and convincing reasons for departure from sentencing guidelines.
Neal Smith pleaded guilty to burglary and grand theft and was promised a sentence within guidelines if he met certain conditions. Smith failed to appe…
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BOARDMAN, EDWARD F., (Ret.) Judge.
The appellant, Neal Smith, seeks review of the trial court’s imposition of a departure sentence after he pleaded guilty to burglary of a structure and grand theft. We affirm Smith’s conviction, but remand for resentencing within the guidelines.
At the plea hearing, the trial court placed the following conditions on sentencing Smith within the guidelines recommended range of any nonstate prison sanction:
1. That the Defendant be truthful concerning his prior criminal history.
2. That the Defendant appear for sentencing on 20 January 1986 at 9:30 A.M.
3. That the Defendant engage in no additional criminal activity.
Smith failed to be present at the scheduled sentencing hearing. At a subsequent proceeding, the trial court sentenced Smith outside the guidelines to five years’ incarceration on each offense, to run concurrently. The trial court entered a written order stating as its reason for departure Smith’s failure to abide by the agreed-upon conditions, i.e., that Smith did not appear for sentencing and was untruthful to the court regarding his correct name and prior criminal history.
The trial court cannot impose an otherwise illegal sentence by virtue of Smith’s agreement. Williams v. State, 500 So. 2d 501 (Fla.1986). Here, the trial court’s departure from the guidelines was not supported by clear and convincing reasons. See Denson v. State, 493 So. 2d 60 (Fla. 2d DCA 1986) (defendant’s untruthfulness during sentencing is not a valid reason for departure); Williams, 500 So. 2d at 502 (defendant’s failure to appear at sentencing does not constitute a clear and convincing ground for departure); Trainor v. State, 468 So. 2d 484 (Fla. 2d DCA 1985) (offenses for which no convictions have been obtained cannot form a valid basis to deviate from the guidelines).
In accordance with Williams, therefore, we remand this cause for the imposition of the guidelines recommended sentence.
DANAHY, C.J., and LEHAN, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Schurman v. State, 522 So. 2d 1026 (Fla. 2d DCA 1988)…essed by this court. Appellant s first argument is that the trial court’s sole reason for departing from 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…
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Jones v. State, 524 So. 2d 1115 (Fla. 2d DCA 1988)…erms of plea negotiation — she did.” As appellee concedes, failure to abide by the stipulation and truthfully disclose prior convictions is not a sufficient reason for departure. See Williams v. State, 500 So. 2d 501 (Fla.1986) and Smith v. State, 516 So. 2d 78 (Fla. 2d DCA 1987). Therefore, the sentence is reversed and the cause remanded for resentencing within the guidelines. RYDER, A.C.J., CAMPBELL and LEHAN, JJ., concur.…
Authorities Cited
- Williams v. State, 500 So. 2d 501 (Fla. 1986)
- Trainor v. State, 468 So. 2d 484 (Fla. 2d DCA 1985)
- Denson v. State, 493 So. 2d 60 (Fla. 2d DCA 1986)