WILLIE J. NICHOLS A/K/A JERRY J. JOHNSON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Willie Nichols appeals sentences for grand theft, drug possession, and carrying a concealed weapon, arguing they constituted improper departures from sentencing guidelines. The court reversed, finding the trial court failed to provide written reasons for the departure sentences as required by law.
The sentences were improper departures because the trial court failed to reduce to writing the reasons for departing from the sentencing guidelines. Additionally, even if written reasons had been provided, basing departure on violation of a condition of release appears to be an invalid reason under prior case law.
[1] A trial court's departure from sentencing guidelines is improper if the court fails to provide a written reason for the departure.
[2] A trial court cannot condition acceptance of a guilty plea upon the defendant's agreement to accept a departure sentence for failure to appear.
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“a trial court cannot make the failure to appear a proper basis for departure by simply conditioning acceptance of a guilty plea upon the defendant's agreement to accept a departure sentence if he fails to appear.”
Establishes the principle from Williams v. State prohibiting trial courts from conditioning plea acceptance on acceptance of departure sentences for failure to appear.
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Join FLexlaw to unlock all legal intelligenceDefendant was sentenced to thirty months incarceration for grand theft (violation of probation) plus two concurrent thirty-month sentences for possess…
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LEHAN, Judge.
Defendant appeals from the following sentences: thirty months incarceration for grand theft after defendant’s violation of probation which had been imposed for the grand theft offense and, consecutive to the foregoing thirty months, two concurrent sentences of thirty months incarceration for possession of a controlled substance and carrying a concealed weapon.
Defendant contends that these sentences constituted improper departures from the sentencing guidelines. Defendant’s argument is that the trial court improperly used as his reason for departure defendant’s violation of a condition of release. That violation consisted of defendant, contrary to the trial court’s directions, having failed to report to the probation officer for a PSI interview. Citing and quoting from Williams v. State, 500 So. 2d 501, 503 (Fla.1986), defendant argues that “a trial court cannot make the failure to appear a proper basis for departure by simply conditioning acceptance of a guilty plea upon the defendant’s agreement to accept a departure sentence if he fails to appear.” We reverse.
This case does not involve the type of situation involved in Williams. In this case, as defendant also points out, the trial court did not condition acceptance of defendant’s plea upon defendant’s agreement to accept a departure sentence if defendant failed to appear for the PSI interview as the trial court had directed. Defendant’s plea had already been accepted when the trial court so directed.
Thus, even if a departure based upon a defendant’s violation of a plea agreement of the type involved in Williams would be justified (and Williams held it was not), the departure here was unjustified. This case seems more factually akin to Monti v. State, 480 So. 2d 223 (Fla. 5th DCA 1985), which was cited with approval in Williams, which apparently did not involve a plea agreement, and which held that an improper reason for departure from the guidelines was defendant’s violation of a condition of release that defendant appear for PSI interviews and sentencing. The Monti rationale was that failure to so appear constitutes criminal contempt and that “[i]t is impermissible to deviate from the guidelines based upon a crime for which the defendant has not been convicted.” Id. But in reversing we need not reach the issue involved in Monti, the rationale of which was adopted by Williams. The departure sentences in this case were improper because the record does not reflect any written reason therefor. While the trial court’s verbal statements at the sentencing hearing could be taken as indicating the type of reason found in Williams to be invalid whether or not there was a plea agreement, the trial court did not reduce to writing that reason, nor, as we have said, does it appear that the trial court gave any written reason. This was error. See, e.g., State v. Hill, 492 So. 2d 1072 (Fla.1986); Boynton v. State, 473 So. 2d 703 (Fla. 4th DCA), approved, 478 So. 2d 351 (Fla.1985).
Accordingly, we reverse and remand for resentencing within the guidelines recommended range.
SCHEB, A.C.J., and SCHOONOVER, J., concur.
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Pope v. State, 561 So. 2d 554 (Fla. 1990)…onst. . See, e.g., Rangel v. State, 532 So. 2d 84 (Fla. 3d DCA 1988); Jenkins v. State, 528 So. 2d 527 (Fla. 2d DCA 1988); Martinez v. State, 526 So. 2d 1080 (Fla. 2d DCA 1988); Crigler v. State, 526 So. 2d 176 (Fla. 2d DCA 1988); Nichols v. State, 521 So. 2d 372 (Fla. 2d DCA 1988); Jones v. State, 502 So. 2d 1375 (Fla. 4th DCA 1987). . See, e.g., State v. Simmons, 539 So. 2d 40 (Fla. 3d DCA 1989); State v. Ohler, 539 So. 2d 38 (Fla. 3d DCA 1989); State v. Alvarez, 538 So. 2d 956 (Fla. 3d DCA 1989); State v…
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Martinez v. State, 526 So. 2d 1080 (Fla. 2d DCA 1988)…ial of appellant’s motion to suppress. We find no error in the trial court’s ruling. Accordingly, we affirm appellant’s conviction. In sentencing appellant, the trial court erred in failing to enter written reasons for departure. Nichols v. State, 521 So. 2d 372 (Fla. 2d DCA 1988). We must reverse appellant’s sentence and remand for resen-tencing within the guidelines recommended range. Shull v. Dugger, 515 So. 2d 748 (Fla.1987). Affirmed in part, reversed in part and remanded with instructions. HALL an…
Authorities Cited
- Williams v. State, 500 So. 2d 501 (Fla. 1986)
- Boynton v. State, 473 So. 2d 703 (Fla. 4th DCA 1985)
- State v. Boynton, 478 So. 2d 351 (Fla. 1985)
- Monti v. State, 480 So. 2d 223 (Fla. 5th DCA 1985)
- State v. Hill, 492 So. 2d 1072 (Fla. 1986)