Nichols v. State, 86-3311
| Decision Date | 11 March 1988 |
| Docket Number | No. 86-3311,86-3311 |
| Citation | 521 So.2d 372,13 Fla. L. Weekly 677 |
| Parties | 13 Fla. L. Weekly 677 Willie J. NICHOLS a/k/a Jerry J. Johnson, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
James Marion Moorman, Public Defender, and Deborah K. Brueckheimer, Asst. Public Defender, Bartow, for appellant.
Robert A. Butterworth, Atty. Gen., Tallahassee, and Alan L. Overton, Asst. Atty. Gen., Tampa, for appellee.
Defendant appeals from the following sentences: thirty months incarceration for grand theft after defendant's violation of probation which had been imposed for the grand theft offense and, consecutive to the foregoing thirty months, two concurrent sentences of thirty months incarceration for possession of a controlled substance and carrying a concealed weapon.
Defendant contends that these sentences constituted improper departures from the sentencing guidelines. Defendant's argument is that the trial court improperly used as his reason for departure defendant's violation of a condition of release. That violation consisted of defendant, contrary to the trial court's directions, having failed to report to the probation officer for a PSI interview. Citing and quoting from Williams v. State, 500 So.2d 501, 503 (Fla.1986), defendant argues that "a trial court cannot make the failure to appear a proper basis for departure by simply conditioning acceptance of a guilty plea upon the defendant's agreement to accept a departure sentence if he fails to appear." We reverse.
This case does not involve the type of situation involved in Williams. In this case, as defendant also points out, the trial court did not condition acceptance of defendant's plea upon defendant's agreement to accept a departure sentence if defendant failed to appear for the PSI interview as the trial court had directed. Defendant's plea had already been accepted when the trial court so directed. Thus, even if a departure based upon a defendant's violation of a plea agreement of the type involved in Williams would be justified (and Williams held it was not), the departure here was unjustified. This case seems more factually akin to Monti v. State, 480 So.2d 223 (Fla. 5th DCA 1985), which was cited with approval in Williams, which apparently did not involve a plea agreement, and which held that an improper reason for departure from the guidelines was defendant's violation of a condition of release that defendant appear for PSI interviews and...
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...2d DCA 1988); Martinez v. State, 526 So.2d 1080 (Fla. 2d DCA 1988); Crigler v. State, 526 So.2d 176 (Fla. 2d DCA 1988); Nichols v. State, 521 So.2d 372 (Fla. 2d DCA 1988); Jones v. State, 502 So.2d 1375 (Fla. 4th DCA 1987).3 See, e.g., State v. Simmons, 539 So.2d 40 (Fla. 3d DCA 1989); Stat......
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Martinez v. State, 86-2552
...conviction. In sentencing appellant, the trial court erred in failing to enter written reasons for departure. Nichols v. State, 521 So.2d 372 (Fla. 2d DCA 1988). We must reverse appellant's sentence and remand for resentencing within the guidelines recommended range. Shull v. Dugger, 515 So......