STATE OF FLORIDA, APPELLANT,
v.
CHARLES DAVID SMALLWOOD, APPELLEE
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Florida appeals a downward departure sentence imposed by the trial court, arguing there was insufficient record evidence supporting the departure. The appellate court reverses and remands, holding that a trial judge cannot impose a downward departure based on a plea agreement with the defendant alone (absent state agreement) as this would circumvent the sentencing guidelines scheme.
The court reverses and remands for resentencing. A downward departure must be supported by clear and convincing evidence. More significantly, a trial court cannot use a plea agreement between itself and the defendant (without state consent) to justify a downward departure sentence, as this would circumvent the sentencing guidelines scheme and impermissibly allow judges unilateral control over sentencing regardless of the state's position.
[1] A trial court's reasons for imposing a downward departure from sentencing guidelines must be supported by clear and convincing evidence.
[2] A downward departure sentence is impermissible when justified by a plea agreement between a defendant and the court without the State's agreement.
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Join FLexlaw to unlock all legal intelligence“the trial court's reasons to impose a downward departure from the sentencing guidelines must be supported by clear and convincing evidence”
Establishes the evidentiary standard for downward departures in Florida sentencing law
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Join FLexlaw to unlock all legal intelligenceCharles Smallwood received a downward departure sentence from the trial court based on three reasons. The trial court justified the departure under Fl…
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PER CURIAM.
The State of Florida appeals the judgment and sentence entered against Charles Small-wood asserting that the court impermissibly entered a downward departure sentence. The State acknowledges that each of the three reasons the court gave for departing are valid grounds to mitigate a guideline sentence; however, it argues that in the present case, there was no record evidence to support the court’s findings.
This court has previously held that the trial court’s reasons to impose a downward departure from the sentencing guidelines must be supported by clear and convincing evidence. See State v. Johns, 576 So. 2d 1332, 1335 (Fla. 5th DCA 1991) (citing Reimel v. State, 532 So. 2d 16 (Fla. 5th DCA), rev. denied, 542 So. 2d 989 (Fla.1989)). After a careful review, we find no record support for any of the three reasons the trial court cited. Furthermore, we find that when a plea agreement is between a defendant and the court without the state’s agreement, it is impermissible to then allow the court to use subsection 921.0016(4)(a), Florida Statutes (1993),1 to justify a departure sentence. If this were permitted, a trial judge could unilaterally determine the sentence of his or her choice, notwithstanding the sentencing guidelines or the state’s position on the matter, as long as it was agreeable with the defendant. Such a practice would circumvent the entire sentencing guideline scheme. Accordingly, we reverse and remand for resentencing. On remand, Smallwood shall be given an opportunity to withdraw his plea if he so desires because the record demonstrates that Smallwood believed he had a negotiated sentence, albeit with the court instead of the State.
(4) Mitigating circumstances under which a departure from the sentencing guidelines is reasonably justified include ...
(a) The departure results from a legitimate, uncoerced plea bargain.
REVERSED and REMANDED. GOSHORN and ANTOON, JJ., concur. DAUKSCH, J., concurring specially, with opinion.
. Florida Statutes subsection (4)(a) states:
DAUKSCH, Judge,
concurring specially.
I concur with the majority opinion and write only to say again that it would be much cleaner and certainly more judicious for all judges to undertake the entire burden of sentencing and leave any bargaining out of the process. In my opinion, judges should use the framework and dictates of the sentencing guidelines statutes and rules to decide for themselves the proper sentence. This is not to say that judges should not consider the recommendations and wishes of the lawyers, corrections officials, victims and all others concerned; but it is to say the judge leaves something to be desired when sentencing bargaining occurs. Especially when one side is left out. Let the state and the accused pie a bargain and then leave the sentence to the judge alone.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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State v. Laperreri, 710 So. 2d 119 (Fla. 2d DCA 1998)…period, and thus his scoresheet must include the prior offenses. Because the State did not join in the plea agreement, there is no possibility that the sentence is a valid downward departure based on uncoereed plea agreement. See State v. Smallwood, 664 So. 2d 309 (Fla. 5th DCA 1995); State v. Bowland, 604 So. 2d 556 (Fla. 2d DCA 1992). Accordingly, we reverse Mr. Laperreri’s sentence, and remand for resentencing. On remand, the trial court is directed to give Mr. Laperreri the opportunity to withdraw his pl…
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State v. Johnson, 696 So. 2d 1328 (Fla. 3d DCA 1997)…e State of Florida appeals from the downward departure sentence imposed upon the defendant below, Kirk Johnson. We agree with the State’s contention that the three reasons set forth for the downward departure were either invalid, State v. Smallwood, 664 So. 2d 309 (Fla. 5th DCA 1995)(holding that a downward departure based on a legitimate, uncoerced plea is not justified where the plea agreement is between the defendant and the court without the State’s agreement), or unsupported by a preponderance of the evi…
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State v. West, 718 So. 2d 266 (Fla. 5th DCA 1998)…ons for the downward departure sentence,1 the trial court gave no written reasons and articulated none at the sentencing hearing.2 We have no choice in this ease but to reverse and remand for imposition of a guidelines sentence. State v. Smallwood, 664 So. 2d 309 (Fla. 5th DCA 1995), abrogated other grounds, State v. Gitto, 23 Fla. L. Weekly D1550 (Fla. 5th DCA June 26, 1998); Hill v. State, 599 So. 2d 127, 128 (Fla. 2d DCA 1992). Timely written reasons3 for departure sentences, upward or downward are requir…
Authorities Cited
- Rector v. State, 532 So. 2d 16 (Fla. 3d DCA 1988)
- State v. Johns, 576 So. 2d 1332 (Fla. 5th DCA 1991)