THADIUS HARRIS, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Harris challenges his five-year sentence imposed pursuant to a plea bargain agreement that included a contingent reduction to eighteen months if he returned for commitment on January 5, 1987. The court affirmed that the five-year sentence exceeded the applicable guidelines and was improperly imposed as punishment for his failure to appear, warranting reversal and resentencing.
The court held that a sentence exceeding the guidelines cannot be sustained when imposed (or not reduced) based on a defendant's failure to appear in court, as this does not constitute a clear and convincing reason for departure. On remand, if Harris's absences were excusable, the sentence should be reduced to eighteen months as agreed; if not excused, he should be resentenced within the properly calculated guidelines or five years, whichever is less.
[1] A sentence in excess of sentencing guidelines cannot be sustained when based on a defendant's failure to appear in court, even if agreed to as part of a plea bargain.
[2] A defendant's failure to appear in court does not constitute a clear and convincing reason for a sentencing departure beyond the guidelines.
Previewing 2 of 6 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 well settled that the defendant's failure to show up in court, even as agreed in a plea bargain, does not constitute a clear and convincing reason for departure.”
Establishes the core legal principle that non-appearance cannot justify sentencing deviation from guidelines.
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Join FLexlaw to unlock all legal intelligenceHarris was found to have violated community control requirements from a prior burglary conviction on December 19, 1986. The court, state, and defense …
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SCHWARTZ, Chief Judge.
This appeal challenges a sentence, entered pursuant to the terms of negotiations among the court, the state and the defense, which, as it turned out, was in excess of the guidelines. To the extent it was, we reverse and remand for resentencing in accordance with the directions which follow.
On December 19, 1986, Harris was found to have violated the terms of a community control requirement imposed for a prior burglary conviction. Acting under the assumption that he was subject to the twelve to thirty month state prison cell of the applicable guidelines, the court and the parties agreed that he would be formally sentenced to five years — which he was — but that he would then be permitted to postpone actually serving the term on the understanding that if he returned for commitment after the holidays on January 5, 1987, the sentence would be “mitigated” to eighteen months. January 5th arrived, but Harris did not. At a hearing on January 6th, at which he was also not present, therefore, the trial court ruled that the previously imposed five year sentence would remain intact. After Harris was subsequently apprehended, the court— without hearing him as to the reasons for his non-appearance — again declined to amend the sentence.
As indicated, the portion of the sentence in excess of the guidelines cannot be sustained. It is well settled that the defendant’s failure to show up in court, even as agreed in a plea bargain, does not constitute a clear and convincing reason for departure. Williams v. State, 500 So. 2d 501 (Fla.1986); King v. State, 525 So. 2d 924 (Fla. 3d DCA 1988); Johnson v. State, 508 So. 2d 779 (Fla. 3d DCA 1987).
It obviously makes no difference that, in the cited cases, the defendant’s sentence was increased beyond the guidelines because he failed to appear whereas, in this case, his existing sentence was not reduced for the same reason. The effect of each situation is the same impermissible one: a sentence beyond the guidelines was incorrectly imposed upon the defendant for a non-appear-anee in court.
There remains the question of the appropriate disposition of the case after remand. In dealing with this issue, there is no reason why, apart from the impropriety of a super-guidelines sentence, the terms of the mutually agreed sentencing bargain should not be enforced. See Jacobs v. State, 522 So. 2d 540 (Fla. 3d DCA 1988), and cases cited; Lee v. State, 471 So. 2d 195 (Fla. 4th DCA 1985).
Thus, if the trial court determines that Harris’s absences were excusable — if, for example, he had been ill or, as is intimated but not developed in the record, had been unjustifiably arrested — the sentence should be reduced to the eighteen months agreed upon. See Johnson, 508 So. 2d at 780. If his absences were not excused, however, he should be sentenced in accordance with the guidelines as properly calculated. Since Harris has already agreed to a five year sentence, we see no impediment, so long as he does not receive more than the five years, to a proper recalculation of his guidelines score, as the state urges,1 even if it may result in a proposed sentence of more than the twelve to thirty months previously understood by the parties. In other words, assuming that Harris’s non-appearance violated his bargain, the court may2 sentence him to anything up to the outermost limits of the correct guidelines recommendation or five years in prison, whichever is less.
Reversed and remanded with directions.
. The state alleges that the prior computation was incorrect and that a proper calculation would place Harris within the three and one-half to four and one-half years range.
. Of course, the court is not required, but is only permitted to impose the maximum guidelines sentence.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
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Walker v. State, 578 So. 2d 514 (Fla. 3d DCA 1991)…roceedings at the actual sentencing, however, make it impossible to determine whether his absence was excusable “if, for example, he had been ill or, as is intimated but not developed in the record, had been unjustifiably arrested.” Harris v. State, 524 So. 2d 1104, 1105 (Fla. 3d DCA 1988); see Parker v. State, 465 So. 2d 1361 (Fla. 1st DCA 1985). We therefore vacate the sentence and remand for further proceedings solely to determine these issues. If no excuse for non-attendance and no unjustifiable arrest are…
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Rahmings v. State, 636 So. 2d 567 (Fla. 3d DCA 1994)…tate, 608 So. 2d 898 (Fla. 3d DCA 1992). The defendant, however, attempts to distinguish Quarterman, and contends that her [*568] sentence must be reversed based upon Williams v. State, 500 So. 2d 501 (Fla.1986), and our holding in Harris v. State, 524 So. 2d 1104 (Fla. 3d DCA 1988), which relied upon Williams. Williams and Harris each stood for the proposition that a defendant’s failure to appear in court could not itself justify an upward departure sentence, even if the failure to appear constituted the bre…1 / 2
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Santamaria v. State, 528 So. 2d 941 (Fla. 3d DCA 1988)…court summarily denied the pro se motion. This appeal followed. A court may not impose a sentence outside the guidelines merely because a defendant fails to appear in court as ordered. Williams v. State, 500 So. 2d 501 (Fla.1986); Harris v. State, 524 So. 2d 1104 (Fla. 3d DCA 1988); King v. State, 525 So. 2d 924 (Fla. 3d DCA 1988); Johnson v. State, 508 So. 2d 779 (Fla. 3d DCA 1987); Johnson v. State, 501 So. 2d 158 (Fla. 3d DCA 1987); see Lee v. State, 471 So. 2d 195 (Fla. 4th DCA 1985). Failure to abide by…
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)
- LEE v. State, 471 So. 2d 195 (Fla. 4th DCA 1985)
- Young v. State, 522 So. 2d 540 (Fla. 3d DCA 1988)
- Jacobs v. State, 522 So. 2d 540 (Fla. 3d DCA 1988)
- Loylin King v. State, 525 So. 2d 924 (Fla. 3d DCA 1988)
- Johnson v. State, 508 So. 2d 779 (Fla. 3d DCA 1987)