State v. Delgadillo
| Decision Date | 30 August 1995 |
| Docket Number | No. 95-772,95-772 |
| Citation | 659 So.2d 1264 |
| Parties | 20 Fla. L. Weekly D1987 The STATE of Florida, Appellant, v. Alberto DELGADILLO, Appellee. |
| Court | Florida District Court of Appeals |
Robert A. Butterworth, Attorney General, and Avi J. Litwin, Assistant Attorney General, for appellant.
Bruce A. Alter, Miami, for appellee.
Before SCHWARTZ, C.J., and HUBBART and NESBITT, JJ.
The State of Florida appeals a final order sentencing Alberto Delgadillo to a downward departure sentence. We reverse.
In 1992, Delgadillo was charged with three counts of sexual battery, one count of committing a lewd assault, and one count of incest. He pled no contest to one count of sexual battery in exchange for being placed on probation for five years and a withhold of adjudication. This was a downward departure from the sentencing guidelines, which sentence contained several special conditions, including that Delgadillo must successfully complete a Mentally Disordered Sex Offender (MDSO) program.
In August of 1994, the lower court dismissed an affidavit of violation of probation alleging that Delgadillo was unsuccessfully terminated from the MDSO program. The judge ordered Delgadillo to continue in the program. In November of 1994, a second affidavit of probation violation was filed, alleging that Delgadillo had failed to comply with several conditions of his original probation. At the probation revocation hearing, the judge offered Delgadillo a plea whereby Delgadillo would admit to violating his probation, spend six months in Dade County jail, followed by five years of probation. This downward departure sentence was entered over strenuous objection by the State. The trial court did not provide any written reasons for the downward departure sentence.
In our recent opinion of State v. Zlockower, 650 So.2d 692 (Fla. 3d DCA 1995), we held that the Florida Supreme Court decisions in Pope and Ree require written reasons for a downward departure disposition, without exception, regardless that the original sentence was itself a downward departure. Pope v. State, 561 So.2d 554 (Fla.1990); Ree v. State, 565 So.2d 1329 (Fla.1990). Here, the original negotiated plea, itself a downward departure, was unaccompanied by contemporaneous written findings, and therefore the trial court was without authority to depart from the sentencing guidelines upon the subsequent probation violation without explicit written exceptions. Zlockower, 650 So.2d at 694. For this...
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...Miami, for Respondent. WELLS, Justice. We granted review of State v. Franquiz, 654 So.2d 1068 (Fla. 3d DCA 1995), and State v. Delgadillo, 659 So.2d 1264 (Fla. 3d DCA 1995), and consolidated those cases, which the Third District Court of Appeal certified to be in conflict with Schiffer v. S......
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...v. Roman, 634 So.2d 291 (Fla. 1st DCA 1994). The Second and Third District Courts of Appeal appear to be in accord. State v. Delgadillo, 659 So.2d 1264 (Fla. 3d DCA 1995), review granted, No. 86,558, 668 So.2d 603 (Fla. Feb. 1, 1996); State v. Franquiz, 654 So.2d 1068 (Fla. 3d DCA 1995), re......
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... ... Where, however, the trial judge does elect to modify a probationary sentence after a violation to impose what is tantamount to a downward departure sentence, this court has said that contemporaneous written reasons for the departure sentence are required. State ... v. Delgadillo, 659 So.2d 1264 (Fla. 3d DCA 1995) ("[T]he trial court was without authority to depart from the sentencing guidelines upon the subsequent probation violation without explicit written exceptions.") (quoting State v. Zlockower, 650 So.2d 692, 694 (Fla. 3d DCA 1995)), approved, Franquiz v. State, 682 ... ...
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Franquiz v. State
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