State v. Glover

Decision Date25 March 1994
Docket NumberNo. 93-936,93-936
Citation634 So.2d 247
Parties19 Fla. L. Weekly D677 STATE of Florida, Appellant, v. Kurt GLOVER, Appellee.
CourtFlorida District Court of Appeals

Robert A. Butterworth, Atty. Gen., Tallahassee, and Bonnie Jean Parrish, Asst. Atty. Gen., Daytona Beach, for appellant.

James B. Gibson, Public Defender, and Sean K. Ahmed, Asst. Public Defender, Daytona Beach, for appellee.

GOSHORN, Judge.

Kurt Glover was originally charged with three counts of capital sexual battery. Pursuant to a plea agreement, Glover was placed on community control and probation for two counts of attempted sexual battery. An affidavit was subsequently filed alleging defendant had violated the terms of his community control.

The court held a hearing on the violation and, after accepting testimony from various witnesses and argument from counsel, the trial judge found Glover guilty of the violation. The State requested that Glover be incarcerated. Glover requested that his original sentence be reimposed. The trial judge stated the following:

Reinstatement is out of order. I'm going to revoke the prior order of community control and probation. I'm going to place him on a new term of two years community control followed by ten years supervised probation....

The State objected without offering any reason why the court should not abide by its original plea agreement with Glover. Instead, it argued that the new term of community control and probation would be a downward departure from the recommended guidelines sentence of 7 to 9 years with a permitted range of 5 1/2 to 17 years. The court gave no oral or written reasons for departure; however, the imposition of community control and probation were in accord with Glover's original plea agreement.

The State urges that this case is controlled by our decision in State v. McCall, 573 So.2d 362 (Fla. 5th DCA 1991). We disagree. While both McCall and Glover were initially placed on community control pursuant to a downward departure plea negotiated with the State, McCall subsequently pled guilty to the violation of his community control with the understanding he would receive a guideline sentence. Glover, however, did not plead, but was found guilty by the court. No agreement with the State to be sentenced under the guidelines was involved. We find the distinction significant.

We find that procedurally, the facts of the instant case are identical to those in State v. Hogan, 611 So.2d 78 (Fla. 4th DCA 1992). In Hogan, the defendant initially received a downward departure sentence negotiated and agreed to by the state. Hogan violated his probation, and when it was revoked, he was placed on a new and extended probation which was again a downward departure. The trial court's judgment did not set forth any written reasons supporting the downward departure from the guidelines. In affirming the trial court, the Fourth District stated:

This court has held that the state's 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 following a violation of probation, to impose "any sentence which it might originally have imposed before placing the probationer on probation...."

Id. at 79. We concur. Of course, the trial judge could have sentenced Glover under the guidelines if he believed the facts surrounding the violation so justified. We believe Hogan is sound public policy because it gives trial judges greater flexibility when dealing with the many variables involved in violation hearings.

However, in light of the constraints of section 948.01(4), Florida Statutes (1993), we must remand with instructions to allow Glover credit for time previously served on community control for these offenses. See State v. Ogden, 605 So.2d 155, 158 (Fla. 5th DCA 1992).

Sentence REVERSED and REMANDED with directions.

DAUKSCH, J., concurs.

HARRIS, C.J., concurs in part; dissents in part, with opinion.

HARRIS, Chief Judge, concurring in part; dissenting in part.

While I agree that State v. Ogden, 605 So.2d 155 (Fla. 5th DCA 1992) requires reversal, I dissent from that portion of the opinion that permits the trial court to depart based on a previous negotiated plea.

I agree that the majority opinion is consistent with State v. Hogan, 611 So.2d 78 (Fla. 4th DCA 1992); however, because I disagree with Hogan, I must dissent from the majority.

But for the negotiated plea arrived at during the initial appearance of this case in the system, unquestionably the sentencing judge, upon the finding of a violation of probation, would be required to sentence within the guideline range or give a written, acceptable reason for departure.

Rule 3.701(b)(6), Rules of Criminal Procedures, provides:

While the sentencing guidelines are designed to aid the judge in the sentencing decision and are not intended to usurp judicial discretion, departures from the presumptive sentence established in the guidelines shall be articulated in writing and made when circumstances or factors reasonably justify the aggravation or mitigation of the sentence. (Emphasis added.)

Regardless of the...

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4 cases
  • State v. Zlockower
    • United States
    • Court of Appeal of Florida (US)
    • February 22, 1995
    ...it gives trial judges greater flexibility when dealing with the many variables involved in violation hearings. State v. Glover, 634 So.2d 247, 248 (Fla. 5th DCA 1994); accord Schiffer v. State, 617 So.2d 357, 358 (Fla. 4th DCA 1993) (no written reasons necessary; prior plea agreement provid......
  • Franquiz v. State
    • United States
    • United States State Supreme Court of Florida
    • October 10, 1996
    ...with Schiffer v. State, 617 So.2d 357 (Fla. 4th DCA 1993), State v. Hogan, 611 So.2d 78 (Fla. 4th DCA 1992), and State v. Glover, 634 So.2d 247 (Fla. 5th DCA 1994). We have jurisdiction. Art. V, § 3(b)(4), Fla. Franquiz was charged in 1992 with three counts of sexual battery, one count of k......
  • State v. Brown, 95-2755
    • United States
    • Court of Appeal of Florida (US)
    • June 11, 1996
    ...Accord Schiffer v. State, 617 So.2d 357 (Fla. 4th DCA 1993). In a 2-1 opinion, the Fifth District has followed Hogan. State v. Glover, 634 So.2d 247 (Fla. 5th DCA 1994). We find these decisions unpersuasive. Hogan appears to be based on the proposition that "the state's prior stipulation to......
  • Brown v. State
    • United States
    • United States State Supreme Court of Florida
    • February 6, 1997
    ...with Schiffer v. State, 617 So.2d 357 (Fla. 4th DCA 1993), State v. Hogan, 611 So.2d 78 (Fla. 4th DCA 1992), and State v. Glover, 634 So.2d 247 (Fla. 5th DCA 1994). We have jurisdiction. Art. V, § 3(b)(4), Fla. In Franquiz v. State, 682 So.2d 536 (Fla.1996), we resolved this conflict, holdi......

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