STATE OF FLORIDA, APPELLANT,
v.
SCOTT ALLEN, APPELLEE
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A trial court cannot depart below sentencing guidelines over the state's objection without providing clear and convincing written reasons.
[1] A trial court may not offer a plea bargain below the sentencing guidelines over the state's objection without providing clear and convincing written reasons for the depar…
[2] A trial court's failure to state written reasons for departing from sentencing guidelines constitutes an error.
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Join FLexlaw to unlock all legal intelligenceThe defendant was charged with drug offenses and pled no contest to one count while another was dismissed on double jeopardy grounds. The trial court …
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PER CURIAM.
The state appeals the trial court’s imposition of appellee’s mitigated sentence. Ap-pellee was charged with count I, purchase of cocaine at or near a school, in violation of section 893.13(l)(e), Florida Statutes (1987), and count II, possession of cocaine. Appellee motioned to dismiss the information, alleging the unconstitutionality of the statute and double jeopardy. Because review of this court’s opinion upholding the constitutionality of the statute was pending before the supreme court, appellee pled no contest to count I. Count II was dismissed on double jeopardy grounds. However, if the statute were to be held unconstitutional
, the plea would apply to count II, which would be reinstated.
Although the guidelines scoresheet recommendation was four and one-half to five and one-half years’ incarceration, the trial court withheld adjudication of guilt and placed appellee on two years’ probation with sixty days in county jail. No written or oral reasons for departure were stated. The state challenges the departure and appellee concedes the error. We agree and reverse and remand.
A trial court is not free to offer a plea bargain which is below the sentencing guidelines and over the objection of the state, unless the trial court provides clear and convincing written reasons for the departure. State v. Glenn, 545 So. 2d 903 (Fla. 4th DCA 1989); State v. Brown, 542 So. 2d 1371 (Fla. 4th DCA 1989); State v. Richardson, 536 So. 2d 1193 (Fla. 4th DCA 1989). The trial court provided no written reasons for its sentencing departure.
We reverse and remand to permit the trial court to either sentence appellant within the guidelines or provide written reasons for the departure, State v. Chaney, 514 So. 2d 436 (Fla. 4th DCA 1987), or permit appellee to withdraw his plea, State v. Brown, 542 So. 2d at 1372.
STONE, WARNER and POLEN, JJ„ concur. . The Florida supreme court recently upheld the constitutionality of the statute. Burch v. State, 558 So. 2d 1 (Fla.1990).
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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State v. Sharp, 564 So. 2d 217 (Fla. 4th DCA 1990)…pon the trial court entering a downward departure sentence, we find controlling State v. Brown, 542 So. 2d 1371 (Fla. 4th DCA 1989). Accordingly, we vacate the sentence imposed and remand with instructions to resentence Appellee. See State v. Allen, 557 So. 2d 960 (Fla. 4th DCA 1990). REVERSED and REMANDED. LETTS, GLICKSTEIN and DELL, JJ„ concur.…
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State v. Waldo, 582 So. 2d 820 (Fla. 2d DCA 1991)…s and was, accordingly, a downward departure. Since the trial judge failed to provide written reasons for departing from the guidelines, and the state did not agree to the downward departure, the appellee’s sentence must be reversed. State v. Allen, 557 So. 2d 960 (Fla. 4th DCA 1990). Upon remand, since the conditions placed upon the appellee’s admission of guilt were not acceptable, he should be afforded an opportunity to withdraw that admission. Allen. If the appellee elects to proceed to sentencing withou…
Authorities Cited
- Burch v. State, 558 So. 2d 1 (Fla. 1990)
- Waters v. State, 542 So. 2d 1371 (Fla. 3d DCA 1989)
- Mahterian v. State, 514 So. 2d 436 (Fla. 4th DCA 1987)
- State v. Richardson, 536 So. 2d 1193 (Fla. 4th DCA 1989)
- State v. Glenn, 545 So. 2d 903 (Fla. 4th DCA 1989)
- Cornerstone Cmtys., Inc. v. City OF Clearwater, 545 So. 2d 903 (Fla. 2d DCA 1989)
- Vasco Dagama Thompson v. State, 536 So. 2d 1193 (Fla. 5th DCA 1989)