Hoover v. State, 88-3157

Decision Date15 December 1989
Docket NumberNo. 88-3157,88-3157
Citation553 So.2d 764,14 Fla. L. Weekly 2918
Parties14 Fla. L. Weekly 2918 Stanley HOOVER, Appellant, v. STATE of Florida, Appellee.
CourtFlorida District Court of Appeals

Michael E. Allen, Public Defender, Michael J. Minerva, Asst. Public Defender, Tallahassee, for appellant.

Robert A. Butterworth, Atty. Gen., Laura Rush, Asst. Atty. Gen., Tallahassee, for appellee.

SMITH, Judge.

Appellant contends that he was given an invalid departure sentence. We agree and remand for resentencing within the guidelines.

Appellant was permitted to plead to a first degree felony sexual battery and lewd assault. At sentencing, notwithstanding the guidelines recommended range of seven to nine years, the trial court gave a departure sentence of thirty years, basing his decision upon three written reasons: (1) emotional trauma to the victim; (2) presumptive guidelines sentence woefully inappropriate given the nature and severity of the crime and all the factual circumstances surrounding the case; and (3) violation and abuse of position of trust in committing this crime. This sentence was appealed, on appellant's claim that the departure reasons were invalid. The state, on the other hand, contended that the plea agreement included a provision for a thirty year sentence, and requested this court to sustain the departure reasons on that ground. Without reaching the departure issue, this court reversed, finding that fundamental error occurred when appellant was permitted to plead to a crime which the undisputed evidence disclosed he did not commit. Hoover v. State, 511 So.2d 629 (Fla. 1st DCA 1987). On review, the Florida Supreme Court ruled that acceptance of appellant's plea did not constitute fundamental error, and quashed this court's decision "with directions that it remand this cause to the trial court for a determination of the sentencing terms of the plea bargain." Hoover v. State, 530 So.2d 308, 309 (Fla.1988).

On remand, the trial court determined that there had been no meeting of the minds of the parties with regard to a thirty year sentence, and resentenced appellant to a fifteen year departure sentence, again relying, in part, on the emotional trauma allegedly suffered by the victim as support for the departure.

In this appeal, appellant again challenges the validity of the written departure reasons. The state contends that the departure is supported by the first two written reasons given by the trial court. The state concedes that the third reason given is invalid, but maintains that, beyond a reasonable doubt, the absence of the invalid reason would not have affected the departure sentence.

In Lerma v. State, 497 So.2d...

To continue reading

Request your trial
1 cases
  • Gipson v. State, 91-1196
    • United States
    • Florida District Court of Appeals
    • February 13, 1992
    ...merely constitutes a disagreement with the guideline sentence. Such a disagreement is not a valid reason for departure. Hoover v. State, 553 So.2d 764 (Fla. 1st DCA 1989). The sentence is, therefore, vacated and the case is remanded for resentencing of the defendant within the WIGGINTON and......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT