STATE OF FLORIDA, APPELLANT,
v.
JAMES A. REITH, APPELLEE
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The State appealed downward departure sentences imposed on a drug offender, arguing the trial court lacked competent, substantial evidence to support the departure. The appellate court agreed and reversed, holding that the trial court improperly relied on unsworn assertions of defense counsel rather than evidence to justify the departure sentence.
The court held that Reith failed to present competent, substantial evidence to support the downward departure sentences. The trial court erred by relying on unsworn assertions of defense counsel rather than evidence. Therefore, the departure sentences must be reversed and remanded, with directions allowing Reith to withdraw his plea because it was induced by the court's representation that he would receive a downward departure.
[1] A downward departure sentence requires competent, substantial evidence to support the findings justifying the departure.
[2] Unsworn assertions of defense counsel do not constitute competent, substantial evidence to support a downward departure sentence.
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Join FLexlaw to unlock all legal intelligence“However, Reith failed to present any evidence to support the downward departure. Instead, the court erroneously relied on the unsworn assertions of defense counsel.”
Establishes the fundamental error: the trial court used unsworn statements rather than competent, substantial evidence to justify the departure sentence.
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Join FLexlaw to unlock all legal intelligenceJames Reith pleaded guilty to seven sale and possession charges arising from four different transactions in August, September, and October 2007. His s…
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The State seeks review of the downward departure sentences the trial court imposed against James A. Reith for seven sale and possession charges arising from four different transactions in August, September, and October 2007. The State argues that Reith failed to present competent, substantial evidence to support the departure. We agree and reverse.
Although Reith’s scoresheet reflected a minimum sentence of 16.5 months’ incarceration, the trial court imposed concurrent sentences of four years of drug offender probation with a special condition of eight months in county jail for each of the charged offenses in exchange for Reith’s guilty plea. Over the State’s objection, the court found that the downward departure was warranted because Reith was a minor participant in the offenses and the charged crimes were committed in an unsophisticated manner and were isolated incidents. These findings would support a downward departure sentence under section 921.0026(2)(b) and (j), Florida Statutes (2007), if they were supported by compe*910tent, substantial evidence. 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 Reith would receive a downward departure sentence. See Champion, 898 So.2d at 1112. If, after additional proceedings, Reith presents sufficient evidence in support of downward departure sentences,1 the court may again impose such sentences.
Reversed and remanded.
WHATLEY and KELLY, JJ., Concur.
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State v. Browne, 187 So. 3d 377 (Fla. 5th DCA 2016)…ing or to be sentenced in conformance with the Criminal Punishment Code, which may include a new downward departure sentence as long as it is supported by a legally sufficient basis. See Jackson v. State, 64 So. 3d 90, 93 (Fla.2011); State v. Reith, 43 So. 3d 909, 910 [*379] (Fla. 2d DCA 2010); State v. Ahua, 947 So. 2d 637, 637 (Fla. 3d DCA 2007). REVERSED AND REMANDED. PALMER and TORPY, JJ., concur.…
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State v. Schuler, 268 So. 3d 242 (Fla. 5th DCA 2019)
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State v. Knight, 182 So. 3d 887 (Fla. 5th DCA 2016)…reversed and this cause is remanded with instructions to allow Knight to either withdraw his plea and proceed to trial or to elect to be re-sentenced in conformancé with" the CPC. See Jackson v. State, 64 So. 3d 90, 92-93 (Fla.2011); State v. Reith, 43 So. 3d 909, 910 (Fla. 2d DCA 2010). REVERSED and REMANDED. SAWÁYA, PALMER and EDWARDS, JJ., concur.…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Donald B. Banks v. State, 732 So. 2d 1065 (Fla. 1999)
- State v. Walters, 12 So. 3d 298 (Fla. 3d DCA 2009)
- State v. Champion, 898 So. 2d 1111 (Fla. 2d DCA 2005)