State v. Nickerson, 88-1098

• Citation: 541 So.2d 725,14 Fla. L. Weekly 857
• Decision Date: 06 April 1989
• Docket Number: No. 88-1098,88-1098
• Parties: 14 Fla. L. Weekly 857 STATE of Florida, Appellant, v. Ricky L. NICKERSON, Appellee.
• Court: Court of Appeal of Florida (US)

Page 725

541 So.2d 725

14 Fla. L. Weekly 857

STATE of Florida, Appellant, v. Ricky L. NICKERSON, Appellee.

No. 88-1098.

District Court of Appeal of Florida,

First District.

April 6, 1989.

Robert A. Butterworth, Atty. Gen., and Richard E. Doran, Asst. Atty. Gen., Tallahassee, for appellant.

Michael E. Allen, Public Defender, and Kathleen Stover, Asst. Public Defender, Tallahassee, for appellee.

WIGGINTON, Judge.

The state of Florida appeals the trial court's downward departure from a sentencing guideline range of three and one-half to four and one-half years' incarceration imposed following revocation of probation. We reverse.

Nickerson entered a negotiated plea of guilty to the crime of trafficking in cocaine and was sentenced according to the plea agreement to a period of two years' probation, a downward departure from the guideline sentencing range of three and one-half years to four and one-half years in prison. This agreement was reached by the parties in return for appellee's providing substantial assistance to the authorities in prosecuting other drug cases.

Nickerson abided by the terms of his probation until four months prior to the end of his term when he violated the conditions of his probation by failing to make full and truthful monthly reports to his probation officer, for failing to pay the cost of his supervision for those time periods, and for changing his residence or employment without first gaining the consent of his probation officer.

Upon advice of counsel, Nickerson entered a plea of guilty to the charge of violation of probation. Thereafter, the trial court sentenced Nickerson to a period of two years in prison, again a departure from the recommended guidelines range of three and one-half to four and one-half years' incarceration. At the conclusion of the hearing, the state attorney noted the State's objection to the downward deviation. The trial court filed its written reasons for departure emphasizing the disproportionate nature of the sentence to the crime. In the trial court's opinion, "most guideline sentences are insufficient and only rarely does the guideline call for a sentence too severe for the crime committed. This Judge cannot recall giving a sentence under the guidelines but has to make an exception in this case." The court also made the following, somewhat cryptic, statement regarding an apparently additional reason for departure on the basis of "the Court feeling that the guidelines from the original plea agreement precludes the Court from going up several cells on the guidelines from which the defendant pled to originally." In consideration of the foregoing, the trial court sentenced Nickerson to two years "which is one cell above what the defendant bargained for when he pled guilty originally." As authority for the sentence departure, the trial court cited the following cases:

1. Sentence is disproportionate to the crime. Solem v. Helm, 463 U.S. 277 [103 S.Ct. 3001, 77 L.Ed.2d 637] (1983)....

2. State v. Villalove [sic], 481 So.2d 1303 (Fla. 3d DCA 1986), Mitchell v. State, 458 So.2d 10 (Fla. 1st DCA 11984 [sic] ), Rev. denied, 464 So.2d 556 (Fla.1985). Atwaters v. State, 495 So.2d 1219 (Fla. 1st DCA 1988 [sic] ), Munroe v. State, 514 So.2d 397 (Fla. 1st DCA 1987).

We initially hold that the State is correct in its argument that the departure is erroneous insofar as it is based on the disproportionate severity of the sentence. Hansbrough v. State, 509 So.2d 1081 (Fla.1987). Additionally, the court's reliance on Villalovo, Mitchell, Atwaters, and Munroe, recognizing the propriety of a departure based on a minimal amount of drugs, overlooks the subsequent decision of the supreme court in Atwaters v. State, 519 So.2d 611 (Fla.1988). In Atwaters, the supreme court concluded that it would be inappropriate for the trial court to impose a heavier penalty based on the amount of drugs where the legislature had promulgated a statutory range which discussed that specific factor.

However, the apparent second reason for departure enunciated by the trial court suggests some relationship with the prior plea agreement. If the court felt constrained by that agreement, it was misled for it is beyond question "that one who violates the probation on which he was placed pursuant to a plea bargain agreement may have said probation revoked and be sentenced to a term in prison, notwithstanding the terms of the plea agreement." Bilyou v. State, 404 So.2d 744 (Fla.1981). In Bilyou, the supreme court referred to an earlier decision in State v. Segarra, 388 So.2d 1017 (Fla.1980), wherein it had observed "that one who violates his probation should not thereafter be heard to argue that the state is still bound by the terms of the agreement which resulted in the initial imposition of probation." 404 So.2d at 745. In fact, where, as here, a term of straight probation was imposed, upon revocation of that probation the court may "impose any sentence it originally might have imposed, with credit for time served and subject to the guidelines recommendation." Poore v. State, 531 So.2d 161, 163 (Fla.1988).

However, it is also true that "[a] negotiated plea agreement is a valid reason upon which to base a departure from the presumptive guidelines sentence." Smith v. State, 529 So.2d 1106 (Fla.1988). It has also been held that where a valid downward deviation occurred pursuant to a plea bargain when the defendant was initially sentenced, "[t]here is no reason why a trial court may not consider during resentencing the State's prior agreement ..." as a clear and convincing reason to mitigate. State v. Devine, 512 So.2d 1163 (Fla. 4th DCA 1987).

Nevertheless, we cannot determine from the wording of the trial court's reasons for departure whether the court was in fact considering the State's prior agreement as a reason to depart or felt constrained by it. Because the court's only other reason for departure is erroneous, we must reverse and remand the cause to the trial court for further consideration of...