STATE OF FLORIDA, APPELLANT,
v.
ROLISA FORBES, APPELLEE
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Florida appealed a sentence imposed on Forbes for drug possession with intent to sell, arguing the trial court imposed a sentence below the minimum permissible guideline amount without stating a valid reason for departure. The court reversed, holding that because Forbes entered an open plea (not a plea bargain) and the sentencing error was discovered before sentencing, she was not entitled to the lower sentence without a proper departure basis.
The court reversed, holding that the trial court erred in imposing the 13.8-month sentence without stating a reason for departure. Because Forbes entered an open plea rather than a negotiated plea bargain, the lower sentence was not justified, and she was not eligible for the below-guideline sentence once the scoresheet error was discovered before sentencing.
[1] A trial court cannot impose a sentence below the statutory minimum without stating a valid reason for departure.
[2] An open plea, without an agreement with the state, does not constitute a valid reason for a departure sentence.
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“guilty plea made without an agreement with the state does not constitute a valid departure reason”
Establishes that an open plea, as opposed to a negotiated plea bargain, cannot serve as the basis for a sentencing departure
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Join FLexlaw to unlock all legal intelligenceForbes entered an open plea to possession of cocaine with intent to sell or deliver. The trial court initially sentenced her to 13.8 months in prison,…
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KLEIN, J.
The state appeals a sentence, contending that it was below the minimum permissible sentence with no reason given for a departure. We reverse.
After appellant entered an open plea to one count of possession of cocaine with intent to sell or deliver, the trial court sentenced her to 13.8 months in prison, which was the lowest permissible sentence under the scoresheet. The court then vacated the sentence because appellant requested time to find someone to care for her child and advised appellant that it would impose the same sentence if she turned herself in two weeks later. When appellant timely appeared to be sentenced, the state informed the court that the scoresheet was incorrect, as it omitted another charge, and under the corrected scoresheet the minimum permissible sentence was 17.7 months. The trial court felt bound to impose the 13.8 month sentence, and did so without stating a reason for departure under section 921.0024(2), Florida Statutes (2001).
Appellee argues that we should affirm because this was, in essence, a departure based on a valid plea bargain. As we noted earlier, however, this was an open plea. See State v. Bell, 854 So. 2d 686 (Fla. 5th DCA 2003) (guilty plea made without an agreement with the state does not constitute a valid departure reason). AL though the error may be a ground on which appellee can have her plea vacated, she was not eligible for the lower sentence, where the mistake was discovered before she was sentenced, unless there is a basis for departure. We therefore reverse for imposition of a sentence reflecting the corrected scoresheet.
STEVENSON, J., concurs.
POLEN, J., concurs specially with opinion.
[*1147] POLEN, J.,
concurring specially.
I agree with the result reached by the majority. I write separately to express my understanding of the phrase “unless there is a basis for departure” in the next to last sentence, as allowing the trial court to enter a downward departure sentence if there are valid grounds other than plea agreement upon which to do so.