THE STATE OF FLORIDA, APPELLANT,
v.
KIRK JOHNSON, APPELLEE

Fla. 3d DCA | 1997-07-23
No. 96-196
Before COPE, GODERICH and SORONDO, JJ.
696 So. 2d 1328 Florida District Court of Appeal, Third District (1997) Positive Treatment
Cited by 2 cases
Topics
Valid Reasons For Departure Downward Departure Sentence Preponderance Of The Evidence Standard

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Opinion of the Court
PER CURIAM.

[*1329] PER CURIAM.

The 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 evidence. § 921.001(4)(a)(6), Fla.Stat. (1995).

Accordingly, the downward departure sentence is reversed and remanded to the trial court for resentencing within the guidelines. Jones v. State, 559 So. 2d 204 (Fla.), cert. denied, 498 U.S. 907, 111 S.Ct. 276, 112 L.Ed.2d 232 (1990). Further, at the resentencing hearing, the defendant must be given the opportunity to withdraw his plea. State v. Gordon, 645 So. 2d 140 (Fla. 3d DCA 1994), review denied, 652 So. 2d 816 (Fla.1995).

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Cited By

  • State v. Gitto, 731 So. 2d 686 (Fla. 5th DCA 1998)
    …then, in most cases, the court is not legally competent to make a final sentencing determination until a presentence investigation has occurred. 826 S.W. 2d at 322. . See also State v. Kennedy, 698 So. 2d 349 (Fla. 4th DCA 1997); State v. Johnson, 696 So. 2d 1328 (Fla. 3d DCA 1997); State v. Hon-iker, 675 So. 2d 681, 682 n. 1 (Fla. 2d DCA 1996); State v. Williams, 616 So. 2d 187 (Fla. 4th DCA 1993).…
  • State v. Faulk, 840 So. 2d 319 (Fla. 5th DCA 2003)
    …uld be permitted to withdraw his guilty plea since his plea was based on the plea negotiation we now find was improper. State v. Chaves-Mendez, 809 So. 2d 910 (Fla. 5th DCA 2002); State v. Abrams, 706 So. 2d 908 (Fla. 2d DCA 1998); State v. Johnson, 696 So. 2d 1328 (Fla. 3d DCA 1997). Under the current Criminal Punishment Code,1 which applies to this case, the sentencing judge must supply reasons for departing downward in all cases. See § 921.00265(1) and (2), Fla. Stat. The Code lists a “legitimate, uncoerc…

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