STATE OF FLORIDA, APPELLANT,
v.
JOHN LELAND CHAMPION, II, APPELLEE
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A downward departure sentence must be supported by a preponderance of the evidence presented at the sentencing hearing.
The defendant pleaded guilty to burglary and grand theft, facing a minimum sentence of 36.45 months. The trial court departed downward, sentencing him…
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FULMER, Judge.
The State appeals from the downward departure sentence imposed on John Leland Champion, II. Because the departure reasons were not supported by a preponderance of the evidence, we reverse.
Champion pleaded guilty to the charges of burglary and grand theft. The minimum Criminal Punishment Code sentence for Champion’s offenses, according to the scoresheet, was 36.45 months’ imprisonment. Over the State’s objection, the trial court sentenced Champion to fifteen months’ probation.
The trial court gave two reasons for departing from the Criminal Punishment Code. The first reason given was that the need for restitution outweighed the need for Champion to go to prison. The second reason was described by the trial court as “the fact of the relationship between the parties, the past relationship.” However, no evidence was presented at the sentencing hearing to support the departure. Champion’s counsel and the assistant state attorney both presented arguments, but their statements were unsworn and cannot support a downward departure sentence. See State v. Bleckinger, 746 So. 2d 553, 555-56 (Fla. 5th DCA 1999). Therefore, the lack of evidence to support the departure requires a reversal.
On remand, Champion should be given the opportunity to withdraw his guilty plea because it was induced by the trial court’s representation that he would receive a probationary sentence. See State v. Braley, 832 So. 2d 255, 256 (Fla. 2d DCA 2002). If, after further proceedings, the trial court finds that sufficient evidence supports a downward departure, it may again impose a departure sentence. See State v. Bernard, 744 So. 2d 1134, 1136 (Fla. 2d DCA 1999).
Reversed and remanded with directions.
ALTENBERND, C.J., and WHATLEY, J., Concur.
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State v. Walters, 12 So. 3d 298 (Fla. 3d DCA 2009)…hen considering the efficacy of restitution, the trial court must evaluate the defendant’s ability to pay). We also note that the defendant did not testify and that the unsworn statements of counsel do not constitute evidence. See State v. Champion, 898 So. 2d 1111, 1112 (Fla. 2d DCA 2005) (holding that counsel’s unsworn statements cannot support a downward departure). THE JUSTIFIABLE RELIANCE ISSUE At the October 16 hearing in this case, the defendant sought to introduce into evidence a series of e-mails ex…
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State v. Reith, 43 So. 3d 909 (Fla. 2d DCA 2010)…dence. See Banks v. State, 732 So. 2d 1065, 1067 (Fla.1999). However, Reith failed to present any evidence to support the downward departure. Instead, the court erroneously relied on the unsworn assertions of defense counsel. See State v. Champion, 898 So. 2d 1111, 1112 (Fla. 2d DCA 2005); State v. Walters, 12 So. 3d 298, 303 (Fla. 3d DCA 2009). We therefore reverse and remand with directions for the trial court to allow Reith to withdraw his plea because it was induced by the court’s representation that Reit…
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State v. Williams, 963 So. 2d 281 (Fla. 4th DCA 2007)…s case, the court only heard the arguments of counsel for both parties — no testimony or evidence was presented. Counsel’s un-sworn statements presented at a sentenc [*283] ing hearing cannot support a downward departure sentence. State v. Champion, 898 So. 2d 1111 (Fla. 2d DCA 2005). “[Rjepresentations of an attorney alone are insufficient to form a valid basis for departure.” State v. Bernard, 744 So. 2d 1134, 1135 (Fla. 2d DCA 1999). As to the issue of appellant’s age, section 921.0026(2)(k), Florida Statu…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. Bleckinger, 746 So. 2d 553 (Fla. 5th DCA 1999)
- State v. Bernard, 744 So. 2d 1134 (Fla. 2d DCA 1999)
- State v. Braley, 832 So. 2d 255 (Fla. 2d DCA 2002)