THE STATE OF FLORIDA, APPELLANT,
v.
LEON MCCLUSTER, APPELLEE
PER CURIAM.
The State of Florida has appealed from the sentence imposed upon the defendant herein, alleging the trial court erred in departing downward from the sentencing guidelines based upon the quantity of drugs in the defendant’s possession at the time of the offense. The Supreme Court recently held in the case of Atwaters v. State, 519 So. 2d 611 (Fla.1988), that the quantity of drugs may not be utilized as a proper reason to support departure from the sentencing guidelines. Therefore, we reverse the order appealed on the authority of Atwaters v. State, supra, and remand this cause to the trial court for resentencing.
Reversed and remanded.
PER CURIAM.
The petition for rehearing by the appel-lee correctly points to the record which demonstrates that his guilty plea was in exchange for an adjudication of guilt and a $250 fine. This agreement was worked out with the court over the state’s objection. We therefore grant the petition for rehearing and recede from so much of our prior opinion that returned the matter to the trial court for resentencing. The matter will be returned to the trial court to give the defendant the option to withdraw his guilty plea and go to trial or to be sentenced upon a plea of guilty in accordance with the sentencing guidelines.
Reversed and remanded with directions.
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State v. Forbes, 536 So. 2d 356 (Fla. 3d DCA 1988)…, 463 So. 2d 493 (Fla. 2d DCA 1985). Second, we agree that the small amount of cocaine involved in this case was an insufficient reason for departing from the sentencing guidelines. Atwaters v. State, 519 So. 2d 611 (Fla.1988); State v. McCluster, 525 So. 2d 434 (Fla. 3d DCA 1988). A departure sentence, however, must be upheld where, as here, “at least one circumstance or factor justifies the departure regardless of the presence of other circumstances or factors found not to justify departure.” § 921.001(5)…
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State v. Joseph, 543 So. 2d 405 (Fla. 4th DCA 1989)…asons for departure from the guidelines sentence, the instant case must be reversed. If the trial court does not believe that a downward departure is justified, the appellee must be given the opportunity to withdraw his plea. See State v. McCluster, 525 So. 2d 434 (Fla. 3d DCA 1988). GLICKSTEIN, POLEN, JJ., and ESQUIROZ, MARGARITA, Associate Judge, concur.…
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State v. Ashley, 549 So. 2d 226 (Fla. 3d DCA 1989)…er, 536 So. 2d 1017 (Fla.1988); State v. Koopman, 519 So. 2d 613 (Fla.1988); Atwaters v. State, 519 So. 2d 611 (Fla.1988); State v. Forbes, 536 So. 2d 356 (Fla. 3d DCA 1988); State v. Robinson, 530 So. 2d 1082 (Fla. 3d DCA 1988); State v. McCluster, 525 So. 2d 434 (Fla. 3d DCA 1988). [*227] The third reason, lack of prior drug convictions, is another insufficient basis for downward departure. See Sanders v. State, 510 So. 2d 296 (Fla.1987); Riley. We note that Ashley had several prior convictions, although th…
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- Atwaters v. State, 519 So. 2d 611 (Fla. 1988)