STATE OF FLORIDA, APPELLANT,
v.
GREGORY L. STEWART, APPELLEE
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The court held that there was insufficient evidence to support the downward departure sentence imposed by the trial court.
Gregory Stewart pleaded no contest to felony petit theft based on an agreement for a suspended sentence and probation. The trial court imposed a downw…
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STRINGER, Judge.
The State appeals the imposition of a downward departure sentence. We reverse because there was insufficient evidence to support the departure sentence.
Gregory Stewart was charged with felony petit theft. Stewart entered a plea of no contest based on an agreement with the trial court that he would receive a five-year suspended sentence and two years of probation. The State objected to the downward departure sentence. The trial court sentenced Stewart in accordance with the plea agreement. On the guidelines checklist reasons for departure, the trial court marked as a mitigating circumstance that “the defendant requires specialized treatment for a mental disorder that is unrelated to substance abuse or addiction, or for a physical disability, and the defendant is amenable to treatment.” Additionally, the trial court wrote “defendant has advanced AIDS!” The record however does not contain any evidence that Stewart requires specialized treatment that cannot be provided by the Department of Corrections or that Stewart was amenable to such treatment. In fact, the record does not contain any evidence of Stewart’s medical condition or treatment requirements.
We therefore reverse Stewart’s sentence and remand for resentencing within the guidelines. Since the sentence was imposed pursuant to a plea agreement with the trial court, on remand Stewart should be given the opportunity to withdraw his plea. If Stewart withdraws his plea, the trial court may again impose a departure sentence provided the departure sentence is based on competent substantial evidence. See State v. Holley, 702 So. 2d 601 (Fla. 2d DCA 1997).
Reversed and remanded.
PARKER, A.C.J., and WHATLEY, J., Concur.
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State v. Mann, 866 So. 2d 179 (Fla. 5th DCA 2004)…Corrections. See State v. Porche, 826 So. 2d 1062 (Fla. 2d DCA 2002); State v. Tyrrell, 807 So. 2d 122 (Fla. 5th DCA 2002); State v. White, 755 So. 2d 830 (Fla. 5th DCA 2000); State v. Thompson, 754 So. 2d 126 (Fla. 5th DCA 2000); State v. Stewart, 749 So. 2d 555 (Fla. 2d DCA 2000); State v. Abrams, 706 So. 2d 903 (Fla. 2d DCA 1998). Assuming that Mann does suffer from a mental disorder, there has been no showing that he requires specialized treatment that is not available in the Department of Corrections.…
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Kirby Lee Casselman v. State, 761 So. 2d 482 (Fla. 5th DCA 2000)…ct crack cocaine. Even the deputy said he could not testify what the substance was; he merely suspected it was crack cocaine. Because there was insufficient or no evidence to support the departure sentence, it must be reversed. See State v. Stewart, 749 So. 2d 555 (Fla. 2d DCA 2000); Fleshman v. State, 736 So. 2d 1219 (Fla. 5th DCA 1999); Johnson v. State, 689 So. 2d 1111 (Fla. 2d DCA 1997). Where there is no evidence to support the sentencing departure reasons, the failure to object does not preclude the iss…
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State v. Wheeler, 891 So. 2d 614 (Fla. 2d DCA 2005)…cialized treatment for a mental disorder, “it must be established that the mental disorder requires treatment that is not available in the Department of Corrections.” State v. Mann, 866 So. 2d 179, 182 (Fla. 5th DCA 2004); see also State v. Stewart, 749 So. 2d 555 (Fla. 2d DCA 2000). The requirement that the defendant be amenable to treatment for a mental disorder is met by a “showing] that there is a reasonable possibility that the ... treatment of [the] mental disorder will be successful.” State v. Cummings…
Previewing 3 of 8 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. Holley, 702 So. 2d 601 (Fla. 2d DCA 1997)
- Philippe H. Moransais v. Heathman, 702 So. 2d 601 (Fla. 2d DCA 1997)