Smith v. State, BP-489

CourtCourt of Appeal of Florida (US)
Citation12 Fla. L. Weekly 2207,513 So.2d 197
Docket NumberNo. BP-489,BP-489
Parties12 Fla. L. Weekly 2207 Benny Ray SMITH, Appellant, v. STATE of Florida, Appellee.
Decision Date10 September 1987

Michael E. Allen, Public Defender, Pamela D. Presnell, Asst. Public Defender, for appellant.

Robert A. Butterworth, Atty. Gen., John Koenig and Mark C. Menser, Asst. Attys. Gen., for appellee.


This is an appeal from a departure sentence of twelve years incarceration imposed pursuant to a negotiated plea agreement, after this court's invalidation of an earlier sentence for insufficiency of other reasons for exceeding guidelines, and remand for resentencing. Appellant contends the trial court erred in resentencing him based solely on the plea agreement. This court had found in the prior appeal that the referenced agreement was not a clear and convincing reason for departure from the sentencing guidelines because of an absence of record evidence of the existence and terms of the agreement. We find that additional evidence submitted at the hearing on resentencing adequately substantiated the existence of a valid plea agreement, and affirm on that basis.

Appellant was charged with armed robbery, in violation of section 812.13, Florida Statutes. The recommended guidelines sentence for the offense was 4 1/2 to 5 1/2 years incarceration. Appellant entered a plea of guilty and was sentenced outside the guidelines to 15 years incarceration pursuant to an agreement by which he agreed to be sentenced outside the guidelines to a term of incarceration up to 20 years. The apparent sole inducement to appellant for the agreement was the avoidance of the potential for a sentence up to the statutory maximum for the charged offense, life imprisonment, assuming existence of reasons for exceeding guidelines.

In sentencing appellant initially the trial court recited five reasons for departure from the guidelines, including appellant's prior criminal history, his threatening of the victim of the offense with a sawed-off shotgun, his involvement in a conspiracy to rob several establishments, his possession and display of the shotgun, the inadequacy of the recommended guidelines sentence, and his agreement to be sentenced outside the guidelines to a term up to 20 years incarceration. On appeal, this court found five of the six stated reasons were not clear and convincing reasons for departure and remanded the case for resentencing. As to...

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2 cases
  • Thomas v. State, 87-2907
    • United States
    • Court of Appeal of Florida (US)
    • February 9, 1988
    ...BARKDULL, NESBITT and JORGENSON, JJ. Page 309 PER CURIAM. Affirmed. Newton v. State, 513 So.2d 1271 (Fla. 3d DCA 1987); Smith v. State, 513 So.2d 197 (Fla. 1st DCA 1987); Bell v. State, 453 So.2d 478 (Fla. 2d DCA 1984); See Straight v. State, 488 So.2d 530 (Fla.1986); Key v. State, 452 So.2......
  • Smith v. State, 71372
    • United States
    • United States State Supreme Court of Florida
    • August 18, 1988
    ...REASON FOR EXCEEDING GUIDELINES UP TO THE AGREED MAXIMUM WITHOUT STATING REASONS OTHER THAN THE FACT OF THE AGREEMENT? Smith v. State, 513 So.2d 197, 199 (Fla. 1st DCA 1987). We have jurisdiction. Art. V, Page 1107 section 3(b)(4), Fla. Const. We answer the certified question in the affirma......

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