THE STATE OF FLORIDA, APPELLANT,
v.
CLARENCE WATSON, APPELLEE
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The State appealed a sentencing where the trial court imposed a below-guidelines sentence based solely on a prosecutorial offer that had been revoked before acceptance. The court held that a revoked offer cannot serve as a basis for a departure sentence and vacated the sentence.
No. A trial court cannot justify a downward departure from sentencing guidelines based on a revoked offer. Applying ordinary contract principles, once an offer is effectively revoked, the offeree's power of acceptance is terminated, and a revoked offer cannot serve as the sole basis for a sentencing departure.
[1] A trial court cannot justify a downward departure from sentencing guidelines based solely on a state's offer that has been unequivocally revoked prior to acceptance.
[2] A revoked offer, like a revoked contract offer, terminates the offeree's power of acceptance.
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“By exercising this power to revoke — by an effective revocation, the offeree's power of acceptance is terminated.”
The court's application of contract law principle establishing that revocation of an offer eliminates the recipient's ability to accept it.
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Join FLexlaw to unlock all legal intelligenceWatson pleaded guilty to violation of probation and sexual offender registration requirements as a habitual offender. The prosecutor initially offered…
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SCHWARTZ, Senior Judge.
Upon Watson’s guilty plea to violation of probation and violation of sexual offender registration requirements, he was sentenced below the state prison minimum guidelines sentence to two years of community control as a habitual offender on the registration charge, and a concurrent sentence of two years of community control for the probation violation. The state appeals because the sole basis for the departure was a state offer which had been revoked. We vacate the sentence.
It is first clear that the state’s previous offer of a below minimum sentence — which, without more, would have authorized such a departure by the court— was in fact unequivocally revoked, as made in self-confessed error, prior to its acceptance.1 Compare State v. Nunez, 855 So. 2d 698, 699 (Fla. 3d DCA 2003) (although it was “unclear whether the State’s initial downward departure offer remained viable ..., the offer to forgo an appeal of a downward departure sentence was resurrected by the State”). Applying ordinary contract principles, see State v. Frazier, 697 So. 2d 944 (Fla. 3d DCA 1997), which provide that one cannot accept a revoked offer, see 1 Arthur L. Corbin, Corbin on Contracts § 2.8, at 215 (Joseph M. Perillo ed., rev. ed. 1993) (“By exercising this power to revoke — by an effective revoca tion, the offeree’s power of acceptance is terminated.”); 1 Samuel Williston & Richard A. Lord, A Treatise on the Law of Contracts § 5:2, at 899 (4th ed.2007) (same), it has consistently been held that a trial court cannot justify a deviation from the guidelines based solely on an offer which is in essence no longer in existence. See State v. Fernandez, 927 So. 2d 939, 941 (Fla. 3d DCA 2006) (trial court may not impose downward departure sentence based on state’s revoked offer); State v. Parisi, 660 So. 2d 372 (Fla. 4th DCA 1995) (same); see also State v. Reasbeck, 359 So. 2d 564 (Fla. 4th DCA 1978). We do so again here.
Consequently, the sentence under review is reversed and the cause remanded to enter a guidelines sentence or to permit appellee to withdraw his plea. See State v. Roberts, 963 So. 2d 747 (Fla. 3d DCA 2007); State v. Ahua, 947 So. 2d 637 (Fla. 3d DCA 2007); State v. Green, 932 So. 2d 365 (Fla. 3d DCA 2006); State v. Brownell, 922 So. 2d 244 (Fla. 3d DCA 2006).
Reversed and remanded.
.
[PROSECUTOR]: I'm sorry, I didn’t mean to interrupt [defense counsel] but I feel I need to. I was under the impression defendant was not a career criminal when I was making the assessment and making that offer. I am now seeing the file, I have to apologize. I did not know that.
I have to revoke that offer. We can’t go below what is a career criminal offer initially. I was trying to help out but I didn’t realize.
[THE COURT]: So what is the offer?
[PROSECUTOR]: Twenty-four months state prison.
[PROSECUTOR]: The only thing I can say, Judge, that I am falling on the sword, it was my mistake. I have revoked the offer, so there is no below the guidelines on the offer. If you were to make one at this time we would take it up on appeal. Now, I have to tell you that I need to look into some things [defense counsel] has been saying. It is not that I don’t believe her, but obviously there are some things that we might need to look into in order to take the case back to career criminal and get a better plea offer, but at this point in time it is premature.
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Citator
Cited By
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State v. Malloy, 23 So. 3d 1292 (Fla. 3d DCA 2010)…the offer, which was tendered prior to a hearing on the defendant’s dispositive motion to suppress, was clearly and effective [*1293] ly withdrawn after that motion was denied.1 See State v. Berry, 976 So. 2d 645 (Fla. 3d DCA 2008); State v. Watson, 971 So. 2d 946, 947 (Fla. 3d DCA 2007). Hence, the departure sentence is vacated and the cause is remanded with directions to enter a guideline sentence or to permit the defendant to withdraw her plea. See State v. Smith, 23 So. 3d 229 (Fla. 3d DCA 2009); State v.…
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State v. Linwood Bowser, 202 So. 3d 466 (Fla. 5th DCA 2016)…s that the trial court erred in ordering the downward departure sentence based on a plea offer previously revoked by the State. We agree that a previously revoked plea offer does not constitute a sufficient ground for departure. See State v. Watson, 971 So. 2d 946, 948 (Fla. 3d DCA 2007); see also State v. Lago, 990 So. 2d 597, 699 (Fla. 3d DCA 2008). Therefore, we vacate the departure sentence and remand for resentencing within the guidelines. In the alternative, Bowser may be allowed to withdraw his plea. S…
Authorities Cited
- State v. Frazier, 697 So. 2d 944 (Fla. 3d DCA 1997)
- State v. Green, 932 So. 2d 365 (Fla. 3d DCA 2006)
- State v. Brownell, 922 So. 2d 244 (Fla. 3d DCA 2006)
- State v. Hon. James M. Reasbeck, 359 So. 2d 564 (Fla. 4th DCA 1978)
- Freeman v. State, 963 So. 2d 747 (Fla. 1st DCA 2007)
- State v. Terumbar Ahua, 947 So. 2d 637 (Fla. 3d DCA 2007)
- State v. Roberts, 963 So. 2d 747 (Fla. 3d DCA 2007)
- State v. Maritza Fernandez, 927 So. 2d 939 (Fla. 3d DCA 2006)
- State v. Parisi, 660 So. 2d 372 (Fla. 4th DCA 1995)
- State v. Nunez, 855 So. 2d 698 (Fla. 3d DCA 2003)