Poppell v. State

• Decision Date: 07 July 1987
• Docket Number: No. BM-362,BM-362
• Citation: 12 Fla. L. Weekly 1632,509 So.2d 390
• Parties: 12 Fla. L. Weekly 1632 Vondell POPPELL, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 390

509 So.2d 390

12 Fla. L. Weekly 1632

Vondell POPPELL, Appellant, v. STATE of Florida, Appellee.

No. BM-362.

District Court of Appeal of Florida First District.

July 7, 1987.

Pamela D. Presnell, Asst. Public Defender, Tallahassee, for appellant.

John M. Koenig, Jr., Asst. Atty. Gen., Tallahassee, for appellee.

THOMPSON, Judge.

Poppell appeals his conviction and 10 year sentence for burglary of a dwelling while armed. We affirm the conviction, but reverse and remand for resentencing.

After being found guilty as charged following a jury trial Poppell agreed to the imposition of a 10 year sentence in exchange for the state's agreement not to seek habitual offender sentencing. The recommended guidelines sentence was 4 1/2 to 5 1/2 years; therefore, the 10 year sentence constituted a departure sentence. In accordance with the parties' agreement, the court sentenced Poppell to 10 years incarceration, and Poppell appealed. In the interim, in Whitehead v. State, 498 So.2d 863 (Fla.1986), the supreme court held that the habitual offender statute "cannot be considered as providing an exemption for a guidelines sentence," and that habitual offender status is not an adequate reason for the imposition of a departure sentence. Id. at 865, 866. Although a defendant may, as part of a plea bargain, agree to a departure sentence, he cannot by agreement confer upon the court the authority to impose an illegal sentence. Williams v. State, 500 So.2d 501 (Fla.1986). If a departure sentence is unsupported by clear and convincing reasons the mere fact that the defendant agrees to it does not render it legal. Id.

Accordingly, we reverse Poppell's 10 year sentence, and remand for resentencing. We note that upon remand nothing prevents the imposition of a departure sentence which is properly supported by one or more clear and convincing reasons. Affirmed in part, reversed and remanded in part.

SHIVERS, J., concurs.

NIMMONS, J., specially concurs.

NIMMONS, Judge specially concurring,

After the Supreme Court's opinion in Whitehead v. State, 498 So.2d 863 (Fla.1986), it appears that the only sphere of applicability of the habitual offender law is in those relatively rare situations where the sentencing guidelines scoresheet calls for a sentence in excess of the offense's statutory maximum. See Winters v. State, 500 So.2d 303 (Fla. 1st DCA 1986); Myers v. State, 499 So.2d 895 (Fla. 1st DCA 1986). That situation does not exist in the instant case.

Ordinarily, I would not feel that a defendant should be permitted on direct appeal to make the kind of attack which this defendant has made on his negotiated sentence. However, it is abundantly clear from the record in this case that the sole inducement for the defendant's agreement to the ten year sentence was the threat of a greater term via the habitual offender law which, unbeknownst to the defendant, was legally impossible. Prior to sentencing, the trial court addressed the defendant as follows:

The Court: [M]y reason for exceeding the guidelines, which I'm going to do in your case, is that the state is agreeable...