STATE OF FLORIDA, APPELLANT,
v.
RICHARD FOBURG, APPELLEE
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
Florida's appellate court reversed a downward sentencing departure for lack of written justification where the record lacked a guidelines scoresheet and the state objected to the plea agreement.
A trial court must provide written justification with clear and convincing reasons for any downward departure from sentencing guidelines, and such departure cannot be justified solely by an unwritten plea agreement when the state objects.
[1] A downward departure from sentencing guidelines requires written justification with clear and convincing reasons, and a plea agreement cannot justify such departure when…
Previewing 1 of 1 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligenceRichard Foburg was sentenced to community control followed by probation. The trial court acknowledged a downward departure from sentencing guidelines …
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Clear And Convincing Reasons cases and more on FLexlaw
PER CURIAM.
The state appeals the trial court’s order placing appellee Richard Foburg on community control to be followed by probation. Specifically, the state argues that the trial court erred in departing downward from the sentencing guidelines recommendation without providing justification in writing for doing so. State v. Jackson, 478 So. 2d 1054 (Fla.1985).
The record on appeal contains neither a guidelines scoresheet nor a written departure order. Thus we are unable to determine exactly what the recommended sentence was, although since Foburg previously had been on probation some amount of imprisonment was at least an option. Fla.R.Crim.P. 3.701(d)(14). The trial court did acknowledge a downward departure on the record, referring to a “disposition understanding,” which we interpret as a plea agreement and which ordinarily would permit a deviation from the recommended sentence. See, e.g., Orsi v. State, 515 So. 2d 268 (Fla. 2d DCA 1987). However, the state has furnished us with an additional transcript excerpt, apparently from the same hearing, wherein the prosecutor asserted that “[t]he state is objecting to this negotiated plea.”
Accordingly, we remand this case to the circuit court for preparation of a guideline scoresheet and, assuming the present sentence represents a departure therefrom, a written order providing clear and convincing reasons for such departure.
DANAHY, A.C.J., and HALL and PATTERSON, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
DOE v. Shands Teaching Hosp. & Clinics, Inc., 614 So. 2d 1170 (Fla. 1st DCA 1993)…h, supra. The decision by the court in Kush not to address Diamond would indicate that Diamond might be limited to its facts. See also, Pullum v. Cincinnati, Inc., 476 So. 2d 657, 659, n* (Fla.1985); Times Publishing Co. v. W.R. Grace & Co.— Conn., 552 So. 2d 314, 315 (Fla. 2d DCA 1989), rev. denied, 563 So. 2d 635 (Fla. 1990). We perceive yet another reason why the Diamond decision, in a product liability context, should not be applied to the facts at bar. In Battilla v. Allis Chalmers Mfg. Co., 392 So. 2d…
Authorities Cited
- State v. Jackson, 478 So. 2d 1054 (Fla. 1985)
- Dep't of Hwy. Safety & Motor Vehicles v. Roberts, 515 So. 2d 268 (Fla. 5th DCA 1987)
- Orsi v. State, 515 So. 2d 268 (Fla. 2d DCA 1987)