STATE OF FLORIDA, APPELLANT,
v.
MICHAEL A. HERRICK, APPELLEE
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The State appealed a downward departure sentence imposed on Michael Herrick for six counts of lewd and lascivious acts in the presence of a child. The court had sentenced Herrick below the guidelines based on an alleged need for specialized treatment without evidentiary support, violating Florida's sentencing guidelines requirement that departure sentences be justified by a preponderance of the evidence.
The court's downward departure sentence was improper error because it was imposed without any supporting evidence in the record, violating section 921.001(6), Florida Statutes, which requires that facts supporting a departure be established by a preponderance of the evidence. The trial court must either allow Herrick to withdraw his plea and proceed to trial or, if he declines to withdraw, sentence him to a guideline sentence.
[1] A downward departure sentence requires factual findings that reasonably justify the mitigation, supported by a preponderance of the evidence.
[2] A court may not impose a downward departure sentence based on a defendant's need for specialized treatment or amenability to treatment without evidence supporting those f…
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Join FLexlaw to unlock all legal intelligence“A court may impose a departure sentence outside the sentencing guidelines based upon circumstances or factors which reasonably justify aggravation or mitigation of the sentence in accordance with s. 921.0016. The level of proof necessary to establish facts supporting a departure from, a sentence under the guidelines is a preponderance of the evidence.”
Establishes the statutory requirement that departure sentences must be supported by a preponderance of the evidence
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Join FLexlaw to unlock all legal intelligenceMichael Herrick pleaded guilty to six counts of lewd and lascivious acts in the presence of a child pursuant to a plea agreement with the court (not t…
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HARRIS, Judge.
Michael A. Herrick pled to six counts of lewd and lascivious acts in the presence of a child. Pursuant to his plea agreement entered into with the court and not with the State,
he was sentenced to a downward departure sentence of community control and probation. The State appeals and we reverse.
The purported basis for the court’s departure was that the defendant needed special treatment and that he was amenable to treatment. The court was apparently relying on the provisions of section 921.0016(4)(d), Florida Statutes, which makes the following a mitigating circumstance which the court may consider when sentencing:
(d) The defendant requires specialized treatment for addiction, mental disorder, or physical disability, and the defendant is amenable to treatment.
While we are not convinced that defendant’s conduct in this case is what the legislature meant by “mental disorder,” the State raises on appeal only the fact that absolutely nothing in the record justifies the finding by the court that specialized treatment was warranted or that defendant would be amenable to such treatment. Herrick refers us to State v. Chandler, 668 So. 2d 1087 (Fla. 1st DCA 1996), as support for his position that the court may properly make this decision. But the Chandler court properly recognized the requirement of section 921.001(6), Florida Statutes, which provides: “A court may impose a departure sentence outside the sentencing guidelines based upon circumstances or factors which reasonably justify aggravation or mitigation of the sentence in accordance with s. 921.0016. The level of proof necessary to establish facts supporting a departure from, a sentence under the guidelines is a preponderance of the evidence.” (Emphasis added.)
In this case, the court accepted a plea agreement opposed by the State and sentenced to a downward departure without any supporting evidence. This was error. The court should permit Herrick to withdraw his plea and go to trial or, if he chooses not to withdraw his plea, sentence him to a guideline sentence.
REVERSED for further proceedings consistent with this opinion.
W. SHARP and GRIFFIN, JJ., concur. . We are unaware of any authority for this highly unusual contractual arrangement.
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State v. Gitto, 731 So. 2d 686 (Fla. 5th DCA 1998)…ause of our failure to recognize in two prior cases that the trial court’s acceptance of a plea over the prosecutor’s objection is clear error which requires outright reversal of any sentence entered in reliance on such a plea. See State v. Herrick, 691 So. 2d 540 (Fla. 5th DCA 1997); State v. Smallwood, 664 So. 2d 809 (Fla. 5th DCA 1995).5 In our earlier cases, after recognizing that the trial court had no authority to bargain with the defendant, we went on to consider the validity of the reasons for departu…
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State v. Arvinger, 751 So. 2d 74 (Fla. 5th DCA 1999)…7] treatment outside prison. Due to Arvinger’s age and bad health, this may have been a potential ground for departure,4 but it was not proven by competent evidence. See Bostick; State v. Honiker, 675 So. 2d 681 (Fla. 2d DCA 1996); State v. Herrick, 691 So. 2d 540 (Fla. 5th DCA 1997). Finally, although 921.0016(i) provides that “cooperation” with the state or prosecution may serve as a mitigating factor, in this case there was no evidence Arvinger cooperated with the state to resolve the offenses in any way,…
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State v. Kennedy, 698 So. 2d 349 (Fla. 4th DCA 1997)…the plea agreement and repeatedly objected to the sentence imposed upon Kennedy. When the State is not a party to a plea agreement, the agreement cannot serve as a basis for a downward departure from the sentencing guidelines. See State v. Herrick, 691 So. 2d 540 (Fla. 5th DCA 1997); State v. Honiker, 675 So. 2d 681, 682 n. 1 (Fla. 2d DCA 1996); State v. Williams, 616 So. 2d 187 (Fla. 4th DCA 1993). We also agree with the State that the record does not support the trial court’s downward departure sentence b…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. Lintalliferro Chandler, 668 So. 2d 1087 (Fla. 1st DCA 1996)