STATE OF FLORIDA, APPELLANT,
v.
GEORGE O. ZUMPF, SR., APPELLEE
WHATLEY, Judge.
In this appeal of George O. Zumpfs downward departure sentence, the State contends that a preponderance of the evidence does not support the reason given for mitigation. That reason was Zumpfs cooperation with the State. The only support for this reason was statements by defense counsel. This is insufficient because testimony or evidence must be presented. See State v. Licea, 707 So. 2d 1155, 1157 (Fla. 2d DCA 1998).
Accordingly, we reverse Zumpfs sentence. Because the sentence was the result of a plea agreement, upon remand Zumpf must be given the opportunity to withdraw his plea and proceed to trial. If he declines that opportunity, the trial court must impose a guidelines sentence.
Reversed and remanded with directions.
FULMER, A.C.J., and NORTHCUTT, J., Concur.
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State v. Bernard, 744 So. 2d 1134 (Fla. 2d DCA 1999)…vidence presented to justify the departure reasons. Instead, all of this information was presented through argument of defense counsel, and representations of an attorney alone are insufficient to form a valid basis for departure. See State v. Zumpf 728 So. 2d 347 (Fla. 2d DCA 1999). Nothing in this record demonstrates that Mr. Bernard was amenable to treatment or counseling, or that he felt any remorse for his actions. Although the inference to be drawn from the defendant’s lack of prior record is that this…
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State v. Munro, 903 So. 2d 381 (Fla. 2d DCA 2005)…hat Mr. Munro had apologized to the police for committing this crime when he was arrested. Unfortunately, “representations of an attorney alone are insufficient to form a valid basis for departure.” Bernard, 744 So. 2d at 1135 (citing State v. Zumpf 728 So. 2d 347 (Fla. 2d DCA 1999)). In this case, only after the court had determined to depart downward did Mr. Munro place on the record his desire to apologize and express his regret for his actions. Because the reasons for departure are completely unsupported…
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State v. Sawyer, 753 So. 2d 737 (Fla. 2d DCA 2000)…tate inquired whether there was anything in the record to support the departure, defense counsel stated that there had been some previous discussions with the trial court that were not included in the record. This is insufficient. See State v. Zumpf 728 So. 2d 347 (Fla. 2d DCA 1999). The trial judge then asked defense counsel if there was a box to check that stated “failure to keep his ducks in a row” over the last eighteen months. When defense counsel responded that there was no such box, the judge told him…
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- State v. Licea, 707 So. 2d 1155 (Fla. 2d DCA 1998)