STATE OF FLORIDA, APPELLANT,
v.
DANIEL SAWYER, APPELLEE
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Florida appeals a downward departure sentence imposed below the sentencing guidelines range. The appellate court reverses and remands, finding the departure was not adequately supported by the record and that the trial court's explanation was insufficient under state sentencing law.
The downward departure was not supported by the record. The trial court failed to establish any factual basis for the claimed mitigating factor, and the departure cannot be upheld on the basis of plea bargain because the State did not join in the agreement.
[1] A trial court may impose a departure sentence based upon circumstances or factors that reasonably justify aggravation or mitigation of the sentence, provided such facts a…
[2] A trial court's stated reason for a downward departure sentence must be supported by the record.
Previewing 2 of 5 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 trial court may impose a departure sentence based upon circumstances or factors which reasonably justify the aggravation or mitigation of the sentence in accordance with section 921.0016, Florida Statutes (1997). The facts supporting the departure must be established by a preponderance of the evidence and must be explained in writing by the trial judge.”
Establishes the legal standard for valid departure sentences in Florida.
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Join FLexlaw to unlock all legal intelligenceThe defendant pleaded guilty to possession of cocaine. The sentencing guidelines recommended 18.97 to 31.42 months' incarceration. The trial judge imp…
The full statement of facts, procedural history, and disposition for this case are member content.
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CAMPBELL, Acting Chief Judge.
The State appeals appellee’s downward departure sentence. We agree that the downward departure is not supported by the record and reverse and remand for resentencing.
A trial court may impose a departure sentence based upon cireum- stances or factors which reasonably justify the aggravation or mitigation of the sentence in accordance with section 921.0016, Florida Statutes (1997). The facts supporting the departure must be established by a preponderance of the evidence and must be explained in writing by the trial judge. See § 921.0016(6), Fla. Stat. (1997); State v. Bernard, 744 So. 2d 1134 (Fla. 2d DCA 1999). Here, the sentencing guidelines’ recommended sentencing range was 18.97 to 31.42 months’ incarceration. The trial judge imposed, in exchange for a guilty plea to possession of cocaine and, over the objection of the State, a sentence of 364 days in county jail concurrent to sentences in two other cases.
The reason listed for departure was that appellee lacked the capacity to conform his behavior to the requirements of law. While this is a valid mitigator under section 921.0016(4)(c), there is nothing in the record to support this reason for departure. A review of the transcript reveals that this reason was listed apparently because no other reason would fit. When the State 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 to check the box labeled “other” and write on the bottom “failed to keep his ducks in a row.”
Finally, although an uncoerced plea bargain is a valid reason to depart from the guidelines, the downward departure in this case cannot be upheld on this basis because the State did not join in the plea agreement. See State v. Laperreri, 710 So. 2d 119 (Fla. 2d DCA 1998); State v. Bowland, 604 So. 2d 556 (Fla. 2d DCA 1992). On remand, appellant should therefore be given the opportunity to withdraw his plea. See State v. Cohen, 667 So. 2d 438 (Fla. 2d DCA 1996).
Reversed and remanded.
PARKER and SALCINES, JJ., Concur.
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Citator
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State v. Dreama Adea Bell, 854 So. 2d 686 (Fla. 5th DCA 2003)…as supported by substantial competent evidence. Each reason is discussed below. Legitimate, Uncoerced Plea Bargain The state correctly argues that a “plea bargain” contemplates an agreement between the state and the defendant. See State v. Sawyer, 753 So. 2d 737, 738 (Fla. 2d DCA 2000); State v. McCarthy, 502 So. 2d 955 (Fla. 2d DCA 1987). Because Bell pled guilty to the violation of community control without any agreement from the state, this reason is not supported by substantial competent evidence. Sawye…
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State v. Thompson, 844 So. 2d 814 (Fla. 5th DCA 2003)…er, and for which the defendant had shown remorse. Id. Any departure based on these grounds must be supported by written reasons or orally pronounced findings of fact on each of the three elements. § 921.00265(2), Fla. Stat. (2002); State v. Sawyer, 753 So. 2d 737 (Fla. 2d DCA 2000). Here, the trial judge only addressed the “unsophisticated manner” element but failed to state how any of the offenses were in fact committed in an unsophisticated way. The trial judge made no findings related to the other two ele…
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State v. Brannum, 876 So. 2d 724 (Fla. 5th DCA 2004)…s not a valid reason for a departure sentence where there was no plea agreement entered into between the defendant and the State. State v. Bell, 854 So. 2d 686 (Fla. 5th DCA 2003), review denied, 866 So. 2d 1212 (Fla.2004); see also State v. Sawyer, 753 So. 2d 737, 738 (Fla. 2d DCA 2000) (“[Although an uncoerced plea bargain is a valid reason to depart from the guidelines, the downward departure in this case cannot be upheld on this basis because the State did not join in the plea agreement.”) (citing State v…
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. Bernard, 744 So. 2d 1134 (Fla. 2d DCA 1999)
- State v. Cohen, 667 So. 2d 438 (Fla. 2d DCA 1996)
- State v. Zumpf, 728 So. 2d 347 (Fla. 2d DCA 1999)
- State v. Bowland, 604 So. 2d 556 (Fla. 2d DCA 1992)
- State v. Laperreri, 710 So. 2d 119 (Fla. 2d DCA 1998)