Poppell v. State, No. BM-362
| Court | Court of Appeal of Florida (US) |
| Writing for the Court | THOMPSON; SHIVERS; NIMMONS; NIMMONS |
| Citation | 12 Fla. L. Weekly 1632,509 So.2d 390 |
| Parties | 12 Fla. L. Weekly 1632 Vondell POPPELL, Appellant, v. STATE of Florida, Appellee. |
| Decision Date | 07 July 1987 |
| Docket Number | No. BM-362 |
Page 390
v.
STATE of Florida, Appellee.
First District.
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
Page 391
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...
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...illegal sentence." Williams v. State, 500 So.2d 501, 503 (Fla.1986); Ivey v. State, 516 So.2d 335 (Fla. 1st DCA 1987); Poppell v. State, 509 So.2d 390 (Fla. 1st DCA 1987). Dupont v. State, 514 So.2d 1159 (Fla. 2d DCA The question for resolution is whether, by virtue of the negotiated plea f......
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...clarified in Quarterman v. State, 527 So.2d 1380 (Fla.1988); State v. Rhoden, 448 So.2d 1013, 1016 (Fla.1984); Poppell v. State, 509 So.2d 390, 390 (Fla. 1st DCA Because we have determined that appellant cannot be sentenced as a habitual offender, the second and third issues appellant raise......
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...at 1016; Fuller v. State, 578 So.2d 887, 889 (Fla. 1st DCA1991), quashed on other grounds, 595 So.2d 20 (Fla.1992); Poppell v. State, 509 So.2d 390, 390 (Fla. 1st DCA1987); Bernard v. State, 571 So.2d 560, 561 (Fla. 5th If a defendant cannot confer authority on a court to impose an illegal ......
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Hosmer v. State, No. BQ-465
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