THE STATE OF FLORIDA, APPELLANT,

v.

LARRY ROGERS, APPELLEE

Fla. 3d DCA | 2009-02-18

No. 3D08-491

Lagoa, J.

2 So. 3d 1112 Florida District Court of Appeal, Third District (2009)

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Synopsis

Florida reversed a downward departure sentence because the trial court failed to provide valid reasons for the departure and must remand for resentencing with a corrected sentencing scoresheet.

Holding

A trial court's downward departure sentence is reversible when no legal basis for the departure appears in the record, and the defendant must be afforded an opportunity to withdraw his plea upon remand.

Headnotes

[1] A downward departure sentence imposed without valid oral or written reasons in the record is reversible, and the defendant must be afforded an opportunity to withdraw his…

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Facts & Procedural History

Larry Rogers received a downward departure sentence from the trial court. The sentencing scoresheet was improperly calculated, listing his primary off…

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Topics

Sentencing Scoresheet Sentencing Error Downward Departure Sentence Habitual Violent Felony Offender

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Opinion of the Court

LAGOA, J.

On appeal, the State argues that the trial court erred in imposing a downward departure sentence, over the State’s objection, without providing valid oral or written reasons for the departure. The defendant, Larry Rogers (“Rogers”), concedes that the trial court erred in imposing a downward departure sentence. Accordingly, because the record contains no legal basis for the downward departure, we are compelled to reverse the sentence and remand for resentencing within the guidelines. On remand, Rogers must be afforded an opportunity to withdraw his plea. See State v. Perez, 802 So.2d 1167 (Fla. 3d DCA 2001).

Reversed and remanded for proceedings consistent with this opinion.1

. The State also argues that the trial court erred in failing to impose the minimum mandatory sentence under the habitual violent felony offender statute. Because the trial court must conduct a new sentencing hearing on remand, we need not address this point as the State will have the opportunity to raise it at the resentencing. See State v. Collins, 985 So.2d 985 (Fla.2008). Lastly, we note that on appeal both Rogers and the State agree that the trial court relied on an improperly calculated scoresheet in sentencing. The State concedes that Rogers’ primary offense, simple battery on a person over 65, is a level 4 offense. As such, Rogers should only have received 22 points, not 56 points for his primary offense. Accordingly, his lowest permissible prison sentence is 26.1 months, not 51.6 months. On remand, the State shall provide the trial court with a properly calculated scoresheet.

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Citator

Authorities Cited

Despart v. State, 884 So. 2d 328 (Fla. 5th DCA 2004)
State v. Ransom Louis Collins, 985 So. 2d 985 (Fla. 2008)
State v. Perez, 802 So. 2d 1167 (Fla. 3d DCA 2001)

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THE STATE OF FLORIDA, APPELLANT, v. LARRY ROGERS, APPELLEE

Cases With Similar Vibessemantic neighbors from the corpus

Citator

Authorities Cited

THE STATE OF FLORIDA, APPELLANT,

v.

LARRY ROGERS, APPELLEE