State v. Sanders, 98-01454

Decision Date19 February 1999
Docket NumberNo. 98-01454,98-01454
Citation728 So.2d 777
PartiesSTATE of Florida, Appellant, v. Freddie SANDERS, Appellee.
CourtFlorida District Court of Appeals

Robert A. Butterworth, Attorney General, Tallahassee, and Ronald Napolitano, Assistant Attorney General, Tampa, for Appellant.

James Marion Moorman, Public Defender, Bartow, and Allyn Giambalvo, Assistant Public Defender, Clearwater, for Appellee.

PER CURIAM.

The State appeals the downward departure sentence that the trial court imposed upon Freddie Sanders after Sanders pleaded guilty to possession of cannabis, driving with suspended license, felony petit theft, and resisting arrest without violence. We reverse.

The State correctly argues that the trial court erred by departing on the basis that the capacity of Sanders to appreciate the criminal nature of his conduct or to conform his conduct to the requirements of law was substantially impaired based on his substance abuse. See State v. Brown, 717 So.2d 625 (Fla. 5th DCA 1998)

. Section 921.0016(5), Florida Statutes (1997), prohibits departure on this basis. However, Sanders is correct that he should be given credit for time served on community control because it was not his fault that the trial court imposed an illegal sentence. See Fraser v. State, 602 So.2d 1299, 1300 (Fla.1992).

Reversed and remanded.

WHATLEY and SALCINES, JJ., Concur.

PARKER, C.J., Concurs specially.

PARKER, Chief Judge, Concurring.

I concur with the majority. I write separately to discuss any resentencing of Sanders. Sanders concedes that the trial court based its departure on an invalid reason, but argues that upon remand the trial court may depart again based on valid reasons. I disagree. Sanders should be allowed to withdraw his plea, but upon any resentencing for the same crimes involved in this appeal, I conclude that the trial court must sentence him within the guidelines. In Shull v. Dugger, 515 So.2d 748, 750 (Fla.1987), the supreme court stated:

We believe the better policy requires the trial court to articulate all of the reasons for departure in the original order. To hold otherwise may needlessly subject the defendant to unwarranted efforts to justify the original sentence and also might lead to absurd results. One can envision numerous resentencings as, one by one, reasons are rejected in multiple appeals. Thus, we hold that a trial court may not enunciate new reasons for a departure sentence after the reasons given for the original departure sentence have been reversed by an appellate court.

This court followed Shull in Patten v. State, 531 So.2d 203 (Fla. 2d DCA 1988), concluding that a trial court, after a reversal by this court for an invalid departure sentence, was prohibited from providing any new reasons to exceed the original recommended sentence. Therefore, it is very important that the prosecutor and the defense attorney at the original sentencing make the trial court aware of all factors that might support a departure sentence.

There are two situations where I conclude that this court would affirm a departure...

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3 cases
  • State v. Gilson, 5D 01-767.
    • United States
    • Florida District Court of Appeals
    • December 7, 2001
    ...(Fla. 5th DCA 2000). 3. State v. Randall, 746 So.2d 550, 552 (Fla. 5th DCA 1999). 4. § 921.0016(5), Fla. Stat. (1997); State v. Sanders, 728 So.2d 777 (Fla. 2d DCA 1999). 5. State v. Brown, 717 So.2d 625 (Fla. 5th DCA 1998). 6. Attention deficit is characterized by developmentally inappropr......
  • State v. Beck
    • United States
    • Florida District Court of Appeals
    • July 19, 2000
    ...the sentence recommended under the sentencing guidelines. See also State v. O'Dorle, 738 So.2d 987 (Fla. 2d DCA 1999); State v. Sanders, 728 So.2d 777 (Fla. 2d DCA 1999); State v. Brown, 717 So.2d 625 (Fla. 5th DCA The third ground for departure was based on Beck's need for alcohol treatmen......
  • State v. O'DORLE, 98-02473.
    • United States
    • Florida District Court of Appeals
    • July 9, 1999
    ...departure from the sentence recommended under the sentencing guidelines." § 921.0016(5), Fla. Stat. (1997). See State v. Sanders, 728 So.2d 777 (Fla. 2d DCA 1999); State v. Brown, 717 So.2d 625 (Fla. 5th DCA 1998). O'Dorle's offenses—four residential burglaries —occurred after the effective......

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