State v. Devine, 4-86-1978
| Decision Date | 30 September 1987 |
| Docket Number | No. 4-86-1978,4-86-1978 |
| Citation | 12 Fla. L. Weekly 2346,512 So.2d 1163 |
| Parties | 12 Fla. L. Weekly 2346 STATE of Florida, Appellant, v. Linda DEVINE, Appellee. |
| Court | Florida District Court of Appeals |
Robert A. Butterworth, Jr., Atty. Gen., Tallahassee, and Georgina Jimenez-Orosa, Asst. Atty. Gen., West Palm Beach, for appellant.
Richard L. Jorandby, Public Defender, and Gary Caldwell, Asst. Public Defender, West Palm Beach, for appellee.
This is an appeal by the state from a sentence imposed below the range provided in the sentencing guidelines after the trial court found the defendant violated her community control. The original sentence was entered pursuant to a negotiated plea stipulation that had been accepted by the court. The community control portion of the sentence was subsequently modified, without objection by the state, by the imposition of fifty hours of community service work. The defendant then again violated her community control, and was sentenced to six years in prison, although the guidelines range is nine to twelve years. The reasons given for the downward deviation were the previous agreement by the state to a sentence below the guidelines, and the severity of the guidelines sentence relative to the nature of the violations. The first of these reasons is a valid basis to deviate, the second is not.
It is clear that a trial judge may not deviate from the guidelines because of disagreement with the sentencing range, even if the court is satisfied that the result is disproportionate in relation to the nature of the crime committed. See Williams v. State, 492 So.2d 1308 (Fla.1986); Scurry v. State, 489 So.2d 25 (Fla.1986); State v. Baker, 498 So.2d 1031 (Fla. 1st DCA 1986); Whitfield v. State, 490 So.2d 1358 (Fla. 5th DCA 1986); State v. Caride, 473 So.2d 1362 (Fla. 3d DCA 1985); State v. Davis, 464 So.2d 195 (Fla. 3d DCA 1985). Thus, this reason was an improper basis for departure.
In this case, a valid downward deviation occurred pursuant to a plea bargain when the defendant was initially sentenced. There is no reason why a trial court may not consider during resentencing the state's prior agreement to a sentence of probation or community control as a clear and convincing reason to mitigate. Cf. State v. Collins, 482 So.2d 388 (Fla. 5th DCA 1985).
Although one of the two reasons given by the trial court for departure was improper, we need not apply the harmless error test set forth in Albritton v. State, 476 So.2d 158 (Fl...
To continue reading
Request your trial
-
Gartrell v. State, 91-0545
...(1985)."); State v. Collins, 482 So.2d 388 (Fla. 5th DCA 1985) (state agreement justifies downward departure); State v. Devine, 512 So.2d 1163 (Fla. 4th DCA 1987) (same); review denied, 519 So.2d 988 596 So.2d at 711-712. Judge Schwartz's reasoning is entirely applicable to this case. Simpl......
-
Salas v. State
...is necessary based on the valid reasons given in the departure order." See Scott v. State, 508 So.2d 335 (Fla.1987); State v. Devine, 512 So.2d 1163 (Fla. 4th DCA), review denied, 519 So.2d 988 (Fla.1987). Because we hold that all of the remaining reasons for departure are valid, we affirm ......
-
State v. Zlockower
...prior stipulation to a downward departure is a valid ground supporting a subsequent sentence below the guidelines. State v. Devine, 512 So.2d 1163 (Fla. 4th DCA), rev. denied, 519 So.2d 988 (Fla.1987). Additionally, section 948.06(1), Fla.Stat. (1991) authorizes a trial court, in sentencing......
-
Franquiz v. State
...downward departure. Rather, we approve the holdings in State v. Nickerson, 541 So.2d 725 (Fla. 1st DCA 1989), and State v. Devine, 512 So.2d 1163 (Fla. 4th DCA 1987), that a trial court may consider the State's prior agreement for a downward departure as a factor during Therefore, a prior d......