State v. Smith, 93-1165

• Citation: 627 So.2d 1345
• Decision Date: 28 December 1993
• Docket Number: No. 93-1165,93-1165
• Parties: 19 Fla. L. Weekly D63 The STATE of Florida, Appellant, v. Arthaniel SMITH, Appellee.
• Court: Court of Appeal of Florida (US)

Page 1345

627 So.2d 1345

19 Fla. L. Weekly D63

The STATE of Florida, Appellant, v. Arthaniel SMITH, Appellee.

No. 93-1165.

District Court of Appeal of Florida,

Third District.

Dec. 28, 1993.

An Appeal from the Circuit Court of Dade County; Alan L. Postman, Judge.

Robert A. Butterworth, Atty. Gen., and Richard L. Polin, Asst. Atty. Gen., for appellant.

Bennett H. Brummer, Public Defender, and Julie M. Levitt, Sp. Asst. Public Defender, for appellee.

Before NESBITT, LEVY and GERSTEN, JJ.

PER CURIAM.

As correctly noted by the appellee, this case, in which the court improperly sentenced the defendant below the proper guideline sentence, is governed by State v. Fields, 602 So.2d 981 (Fla. 3d DCA 1992).

Accordingly, the downward departure sentence imposed in this case must be reversed and the cause remanded with the defendant being given the opportunity to withdraw his plea. This ruling does not preclude the possibility of a reimposition of a downward departure sentence if the test set forth by Herrin v. State, 568 So.2d 920 (Fla.1990) is satisfied.

Reversed and remanded.