State v. McCarthy, 86-151
| Decision Date | 28 January 1987 |
| Docket Number | No. 86-151,86-151 |
| Citation | 502 So.2d 955,12 Fla. L. Weekly 402 |
| Parties | 12 Fla. L. Weekly 402 STATE of Florida, Appellant, v. John Robert McCARTHY, Appellee. |
| Court | Florida District Court of Appeals |
Robert A. Butterworth, Atty. Gen., Tallahassee, and Katherine V. Blanco, Asst. Atty. Gen., Tampa, for appellant.
James Marion Moorman, Public Defender, Bartow, and Paul C. Helm, Asst. Public Defender, Bartow, for appellee.
The appellee, John Robert McCarthy, was convicted of burglary of a dwelling and grand theft in violation, respectively, of sections 810.02 and 812.014, Florida Statutes (1985).
The guidelines scoresheet recommended 4 1/2 to 5 1/2 years of incarceration. The trial court, however, departed downward and sentenced McCarthy to 2 years of community control for the grand theft conviction, followed by 15 years probation imposed for the burglary conviction. The trial court's written reason for departure stated "as per plea agreement--defendant waived any right to be sentenced under the guidelines if probation revoked." The state unsuccessfully objected to the departure and appealed from the sentence imposed upon McCarthy.
This was not the type of plea agreement which can serve as a basis to depart the guidelines. A true plea bargain contemplates an agreement between the state and the defendant which is approved by the court. Fla.R.Crim.P. 3.171; ABA Standards, Pleas of Guilty §§ 3.1-3.3 (1968). Here, the state was not a party to the agreement.
A plea agreement that can serve as a clear and convincing reason for departure is one specifying a permissible sentence. Bell v. State, 453 So.2d 478 (Fla. 2d DCA 1984). McCarthy agreed to allow the court to depart to an indeterminate extent, save as it would be limited by the statutory maximum, should he in the future violate the terms of his probation. We will not approve an agreement that frustrates sentencing consistent with the guidelines. Henry v. State, 498 So.2d 1006 (Fla. 2d DCA 1986). Williams v. State, 500 So.2d 501 (Fla.1986).
We reverse the appellee's sentence and remand for resentencing within the guidelines. The trial court may, however, depart for valid reasons. See, e.g., State v. Twelves, 463 So.2d 493 (...
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State v. Kennedy, 96-4177
...A "plea bargain contemplates an agreement between the state and the defendant which is approved by the court." See State v. McCarthy, 502 So.2d 955, 956 (Fla. 2d DCA 1987). In this case, the State did not participate in the plea agreement and repeatedly objected to the sentence imposed upon......
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State v. Bell
...an agreement between the state and the defendant. See State v. Sawyer, 753 So.2d 737, 738 (Fla. 2d DCA 2000); State v. McCarthy, 502 So.2d 955 (Fla. 2d DCA 1987). Because Bell pled guilty to the violation of community control without any agreement from the state, this reason is not supporte......
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State v. Beck
...court to depart from the guidelines on this basis. See also State v. Arvinger, 751 So.2d 74 (Fla. 5th DCA 1999); State v. McCarthy, 502 So.2d 955, 956 (Fla. 2d DCA 1987). Next, departing on the basis of impairment is prohibited by section 921.0016(5), Florida Statutes, which provides: A def......
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Bland v. State, 86-1121
...cannot be waived and 2) a waiver of guideline sentencing is not a clear and convincing reason for departure. State v. McCarthy, 502 So.2d 955 (Fla. 2d DCA 1987); Henry v. State, 498 So.2d 1006 (Fla. 2d DCA ...