Quarterman v. State, 86-1641
| Decision Date | 24 April 1987 |
| Docket Number | No. 86-1641,86-1641 |
| Parties | 12 Fla. L. Weekly 1104 David J. QUARTERMAN, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
James Marion Moorman, Public Defender, Bartow, and Allyn Giambalvo, Asst. Public Defender, Clearwater, for appellant.
Robert A. Butterworth, Atty. Gen., Tallahassee, and Lauren Hafner Sewell, Asst. Atty. Gen., Tampa, for appellee.
Appellant appeals his judgment and sentence for armed robbery. He raises two points on appeal:
I. WHETHER THE TRIAL COURT ERRED IN SENTENCING APPELLANT IN ABSENTIA?
II. WHETHER THE TRIAL COURT ERRED IN FAILING TO ALLOW APPELLANT TO WITHDRAW HIS GUILTY PLEA WHEN THE COURT FOUND IT COULD NO LONGER HONOR THE TERMS OF THE PLEA AGREEMENT?
We find merit only in appellant's first point. He asserts that the trial court erred when it sentenced him in absentia. We agree and remand only to allow the court to resentence appellant in appellant's presence.
Appellant entered a plea of guilty to the charge of armed robbery. The sentence to be imposed was the result of a negotiated plea resulting in a plea bargain whereby appellant would be sentenced to five-and-one-half years. Prior to his change of plea from not guilty to guilty, appellant had requested a few days continuance to visit a sister who was hospitalized. The negotiated plea was premised on the condition that he would be allowed until the following Monday to visit his sister, but specifically provided as a part of the plea bargain that if he failed to appear for sentencing on the following Monday, the court was free to sentence him up to the maximum sentence of life in prison. That was not a condition imposed after the plea bargain but, as the record clearly indicates, was an integral part of the bargain itself. In fact, it was appellant's attorney who announced the terms of the bargain that included the provision of increased sentence for failure to appear for sentencing. Pumphrey v. State, 502 So.2d 982 (Fla. 1st DCA 1987); Moore v. State, 489 So.2d 1215 (Fla. 2d DCA 1986). The state objected to the continuance for sentencing, stating: "[T]he State is not agreeable to having the sentencing postponed until Monday inasmuch as it took five months to find the defendant after his crime was committed."
We are concerned in our disposition of this issue, however, with the case of Williams v. State, 500 So.2d 501 (Fla.1986). Williams seems to stand primarily for the rule that a defendant's failure to appear for sentencing in and of itself does not constitute a clear and convincing reason for departure from sentencing guidelines, even when defendant acquiesced in the conditions imposed by the trial court. That rule is consistent with Pumphrey and Moore. However, the supreme court in Williams may have gone further, at least by implication, and ruled that the trial court cannot exceed the recommended guidelines sentence when it does so on the basis of a legitimate and uncoerced plea bargain.
The court in Williams states: "A trial court cannot impose an illegal sentence pursuant to a plea bargain." The cases cited in support of that statement, Robbins v. State, 413 So.2d 840 (Fla. 3d DCA 1982) and Smith v. State, 358 So.2d 1164 (Fla. 2d DCA 1978), were not sentences in excess of guidelines recommendations, but were illegal because of some fundamental error or because they exceeded the statutory limit. Plea bargain sentences have consistently been recognized as a valid reason for departure from a recommended sentence even if the court does not state other valid reasons for departure. Houston v. State, 502 So.2d 977 (Fla. 1st DCA 1987); Green v. State, 460 So.2d 378 (Fla. 2d DCA 1984); Bell v. State, 453 So.2d 478 (Fla. 2d DCA 1984); Key v. State, 452 So.2d 1147 (Fla. 5th DCA), pet. for rev. denied, 459 So.2d 1041 (Fla.1984).
We have not, in the past, gone behind legitimate plea bargains to determine whether clear and convincing reasons exist. The final statements...
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