State v. Faulk
| Decision Date | 14 February 2003 |
| Docket Number | No. 5D02-565.,5D02-565. |
| Citation | 840 So.2d 319 |
| Parties | STATE of Florida, Appellant, v. Jeffrey R. FAULK, Appellee. |
| Court | Florida District Court of Appeals |
Charles J. Crist, Jr., Attorney General, Tallahassee, and Anthony J. Golden, Assistant Attorney General, Daytona Beach, for Appellant.
James B. Gibson, Public Defender, and Rosemarie Farrell, Assistant Public Defender, Daytona Beach, for Appellee.
The State of Florida appeals a downward departure sentence. We reverse.
On August 25, 2001, Jeffrey R. Faulk ["Faulk"] was seen placing an automobile battery from the service bay of a U-Haul dealership in the trunk of his vehicle. When confronted by a U-Haul employee, Faulk allegedly attempted to run away and struggled with the employee. However, he waited for police to arrive. He was arrested and ultimately charged by information with robbery with subsequent force and misdemeanor trespass in a structure.
At a hearing which took place on January 30, 2002, the record suggests that plea discussions involving the trial judge took place off the record. When the parties went on the record, the trial judge characterized these discussions as follows:
Mr. Faulk, the court made an offer to your attorney to resolve this case.
Faulk's guidelines scoresheet showed a minimum permissible sentence of 40.65 months in the Department of Corrections. The "offer" was to impose a downward departure sentence for the robbery of five years suspended, upon the successful completion of two years of community control, followed by three years probation, in exchange for a plea. The judge then said:
(Emphasis added).
Faulk indicated some initial reluctance to accept the court's offer, explaining he was working two jobs and was worried he would not be able to comply with the requirements of community control. The court reiterated that Faulk could do substantial prison time if he failed to accept the court's offer for a plea and noted that he could apply to have the community control converted to probation after one year if he had no violation.
Faulk ultimately accepted the court's offer and pled nolo contendere to both robbery and trespass, with the understanding that he would receive five years in the Department of Corrections for the robbery, suspended upon the successful completion of two years of community control, followed by two years of probation. He was sentenced to time served (twenty-two days) for the misdemeanor trespass.
Upon the acceptance of this plea and the imposition of this sentence, the prosecutor objected that the sentence constituted a downward departure without valid reasons. The prosecutor explained that:
This is his at lest [sic] eighth guilty conviction. As I noted earlier to the court in Mr. Martinko's presence, he does not qualify as for any kind of sentencing enhancement. He's not habitual felony offender prison releasee reoffender, however, per scoresheet he should be on the bus to DOC for this offense. And so we're objecting to him not receiving at least forty point six five months in the Department of Corrections. Appears to be no legal basis for downward departure from what I seen [sic] any of the facts of the case.
The following reasons for a downward departure were then offered by the court:
A written judgment and sentence was entered by the court, but no written departure order was ever entered.
The State first complains that Faulk's sentences must be reversed because they were the product of a plea negotiation initiated by the court. This would be per se reversible error. In State v. Chaves-Mendez, 809 So.2d 910 (Fla. 5th DCA 2002), which involved the same trial judge, this court held:
The trial court's initiation of plea negotiations with the defendant was per se reversible error. As the Supreme Court cautioned in State v. Warner, 762 So.2d 507, 513 (Fla.2000), "the trial court must not initiate a plea dialogue; rather, at its discretion, it may (but is not required to) participate in such discussions upon request of a party."
Id. at 910 (Emphasis added).
Faulk attempts to avoid the Chaves-Mendez decision by arguing that the transcript of the plea negotiation appears to be incomplete, and it is possible that one of the parties had requested the court's participation. We continue to exhort the judges and counsel that all plea discussions must be on the record. This does not always happen and, in a proper case, could affect the outcome of an appeal. In this case, however, the record is clear enough that it was the court who made the plea offer. Accordingly, we vacate the sentence and remand for further proceedings. On remand, Faulk may withdraw his plea. Chaves-Mendez, 809 So.2d 910.1
REVERSED and REMANDED.
SHARP, W., J., concurs specially, with opinion.
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Alfonso-Roche v. State
...to upward departures for which reasons need not be given at all” under the Criminal Punishment Code. State v. Faulk, 840 So.2d 319, 322 (Fla. 5th DCA 2003) (Sharp, J., concurring).By reestablishing judicial discretion up to statutory maximums, the Code makes a return to pre–1983 law. The Co......
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Cooper v. State, 5D04-1543.
...Ronnie Cooper, Malone, Pro Se. No appearance for Appellee. PER CURIAM. AFFIRMED. See § 921.002(g), Fla. Stat. (2003); State v. Faulk, 840 So.2d 319 (Fla. 5th DCA 2003). SAWAYA, C.J., MONACO and TORPY, JJ., ...