JOHN MCGLOTHLIN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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McGlothlin was sentenced to 15 years in prison for violating probation stemming from a plea agreement in a sexual battery case. The appellate court reversed, holding that a plea agreement cannot serve as a valid reason for upward departure in sentencing for subsequent probation violations.
A plea agreement cannot serve as a valid reason for upward departure in sentencing for probation violations. Although a plea bargain may justify departure at initial sentencing, it cannot be used as an implicit waiver of guidelines in subsequent sentencing proceedings for probation violations.
[1] A plea agreement for a departure sentence cannot be used as a basis for a greater departure sentence upon a violation of probation.
[2] A trial court may depart beyond the next sentencing cell for a probation violation if clear and convincing reasons exist.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“a plea bargain for a departure sentence cannot thereafter be used as a mechanism for a [greater] increase for violation of probation or community control. Such an increase would constitute an impermissible departure from the recommended guidelines range.”
Establishes the core holding that plea agreements cannot justify upward departure in probation violation sentencing.
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Join FLexlaw to unlock all legal intelligenceMcGlothlin entered a nolo contendere plea to two counts of lewd and lascivious acts on a child in exchange for stipulated sentences of seven years in …
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DELL, Judge.
John MeGlothlin was charged with two counts of capital sexual battery. Pursuant to a negotiated plea agreement, he entered a plea of nolo contendere to two counts of lewd and lascivious acts on a child in exchange for stipulated upward departure sentences of seven years in prison followed by eight years of probation for each count, to run concurrently.
After his release from prison, appellant admitted to violating his probation by failing to pay for the costs of supervision and driving while under the influence of alcohol. The trial court revoked appellant’s probation. A new sentencing guidelines seoresheet provided for a recommended sentence of 3½ to 4½ years and a permitted range of 2½ to 5½ years in prison. However, the trial court departed from the guidelines based on the underlying plea agreement and sentenced appellant to fifteen years. Appellant contends that the underlying plea agreement is not a valid reason for departure. We agree.
The State argues that the sentence was appropriate because if the trial court sentenced MeGlothlin pursuant to the guidelines, his violation of probation would be virtually without penalty because he served almost three years in prison on the original sentence. In Filmare, v. State, 519 So. 2d 73 (Fla. 5th DCA 1988), the fifth district addressed a similar argument and concluded that “[a] trial court can depart beyond the next cell for a violation of probation if there are clear and convincing reasons. However, it is error to depart beyond one cell upwards for the sole reason that a defendant would serve no prison time unless a greater departure is imposed.” Id. at 73 (citation omitted). See Bryant v. State, 513 So. 2d 1362 (Fla. 5th DCA 1987). See also Torres v. State, 517 So. 2d 796, 797-98 (Fla. 4th DCA 1988); Lockett v. State, 516 So. 2d 46, 47 (Fla. 4th DCA 1987).
Here, the only reason stated by the trial court for appellant’s departure sentence was the underlying “uncoerced plea agreement.” In Hosmer v. State, 523 So. 2d 184, 185 (Fla. 1st DCA 1988), the court concluded that ordinarily a plea bargain constitutes a valid reason for a guidelines departure sentence. However, the court stated that:
[a] plea bargain for a departure sentence cannot thereafter be used as a mechanism for a [greater] increase for violation of probation or community control. Such an increase would constitute an impermissible departure from the recommended guidelines range. Fla. R.Crim. P. 3.701(d)(ll). In other words, although a plea bargain may provide a valid reason for departure with respect to the initial disposition, it cannot be viewed as an implicit waiver of the guidelines with respect to sentencing subsequent to the initial disposition.
Id. at 186. See also Torres, 517 So. 2d at 797-98; Lockett, 516 So. 2d at 47.
Accordingly, we reverse appellant’s sentence and remand this cause to the trial court for resentencing within the guidelines.
REVERSED and REMANDED FOR RE-SENTENCING.
WARNER and KLEIN, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Daniels v. State, 870 So. 2d 250 (Fla. 2d DCA 2004)…ure, the plea agreement is not a valid reason for imposition of an upward departure sentence upon revocation of probation unless the defendant specifically agreed in advance to imposition of a departure sentence upon revocation. McGlothlin v. State, 714 So. 2d 640, 641 (Fla. 4th DCA 1998) (following Hosmer v. State, 523 So. 2d 184 (Fla. 1st DCA 1988)); see Wardlaw, 832 So. 2d at 259 (reaching the same result when the original sentence was not an upward departure); Lawrence v. State, 682 So. 2d 582, 583-84 (Fl…1 / 2
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Williams v. State, 772 So. 2d 37 (Fla. 5th DCA 2000)…Appellant has moved for rehearing contending that McGlothlin v. State, 714 So. 2d 640 (Fla. 4th DCA 1998) conflicts with this court’s opinion. McGlothlin is irrelevant to this case. Appellant agreed, as a condition of the downward departure, [*38] that upon a future violation of probation, the guidelines would be waived. DENIED.…
Authorities Cited
- Hosmer v. State, 523 So. 2d 184 (Fla. 1st DCA 1988)
- Alexander Battery Sales, Inc. v. Weck, 517 So. 2d 796 (Fla. 4th DCA 1988)
- Ruiz v. State, 516 So. 2d 46 (Fla. 4th DCA 1987)
- Bryant v. State, 513 So. 2d 1362 (Fla. 5th DCA 1987)
- Filmore v. State, 519 So. 2d 73 (Fla. 5th DCA 1988)
- Moye v. State, 519 So. 2d 73 (Fla. 5th DCA 1988)