JUAN CINTRON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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PER CURIAM.
Juan Cintron pled nolo contendere to a charge of possession of contraband in a state correctional institution.
As conceded by the state, the trial court erred in scoring the defendant's prior conviction for first degree murder as a capital felony upon defendant’s sentencing guidelines scoresheet. See Section 921.001(4)(a), Florida Statutes (1989); Stuart v. State, 536 So. 2d 363 (Fla. 2d DCA 1988).
Finally, we disagree with the state that the trial court can now depart upward from the sentencing guideline sentence. This is so because here there was a negotiated plea agreement between the parties to limit the sentence. Moreover, there was no departure originally and the trial court cannot now undertake to depart citing new reasons. See Shull v. Dugger, 515 So. 2d 748 (Fla.1987); Wyche v. State, 576 So. 2d 884 (Fla. 1st DCA 1991); Owens v. State, 563 So. 2d 180 (Fla. 1st DCA 1990).
REVERSED AND REMANDED.
GLICKSTEIN, C.J., ANSTEAD, J., and JAMES H. WALDEN, Senior Judge, concur.
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Wyatt v. Haese, 649 So. 2d 905 (Fla. 4th DCA 1995)…rvice had been perfected, after a default was entered against him, appellant was not supplied with notice of the trial for damages, which provides an additional independent basis for the reversal of the damages judgment. See, e.g., Watson v. Watson, 583 So. 2d 410, 411 (Fla. 4th DCA 1991); Osceola Farms Co. v. Sanchez, 238 So. 2d 477 (Fla. 4th DCA 1970); Falkner v. Amerifirst Fed. Sav. & Loan Ass'n, 489 So. 2d 758 (Fla. 3d DCA 1986); Fla.R.Civ.P. 1.440(c).…
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State v. Thurmond, 721 So. 2d 827 (Fla. 3d DCA 1998)…which has always been void”. Ramagli Realty Co. v. Craver, 121 So. 2d 648, 654 (Fla.1960). Thus, we conclude that the lower court abused its discretion when it denied the state’s motion seeking to vacate the order of dismissal. See Watson v. Watson, 583 So. 2d 410, 411 (Fla. 4th DCA 1991); Taylor v. Bowles, 570 So. 2d 1093, 1094 (Fla. 4th DCA 1990); Clement v. Marcus, Stowell & Beye, Inc., 516 So. 2d 1137, 1138 (Fla. 4th DCA 1987). Hence, we reverse and remand with directions that this cause, including the wr…
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- Shull v. Dugger, 515 So. 2d 748 (Fla. 1987)
- Owens v. State, 563 So. 2d 180 (Fla. 1st DCA 1990)
- Wyche v. State, 576 So. 2d 884 (Fla. 1st DCA 1991)
- Gray v. State, 536 So. 2d 363 (Fla. 4th DCA 1988)