White v. State, BG-133

• Decision Date: 15 May 1986
• Docket Number: No. BG-133,BG-133
• Parties: 11 Fla. L. Weekly 1143 Michael R. WHITE, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 115

489 So.2d 115

11 Fla. L. Weekly 1143

Michael R. WHITE, Appellant, v. STATE of Florida, Appellee.

No. BG-133.

District Court of Appeal of Florida,

First District.

May 15, 1986.

Michael E. Allen, Public Defender, Larry G. Bryant, Asst. Public Defender, Tallahassee, for appellant.

Jim Smith, Atty. Gen., Gary L. Printy, Asst. Atty. Gen., Tallahassee, for appellee.

SMITH, Judge.

White appeals, contending his sentence was rendered in excess of the sentencing guidelines, and the trial court failed to give its written reasons for departure. We reverse and remand for the reasons set forth below.

Appellant pled guilty to burglary of a structure and grand theft. This plea was negotiated as part of a plea agreement which provided that defendant would receive no more than five years incarceration, and that another case against him would be nolle prossed. At the plea hearing, the following discussion of the plea agreement took place:

Mr. Hellmuth (Assistant Public Defender): I think it needs to be said that if the guidelines come back in this case to less than five years, and the court gives him more than the guidelines but under the cap of--within the cap of five years, that Mr. White does not give up his right to appeal the court's going outside the guidelines.

The Court: I understand that. That's part of it too, wasn't it, Mr. Thies?

Mr. Thies (Assistant State Attorney): Yes, Your Honor.

Again, when explaining the consequences of his plea to appellant, the trial judge stated:

The Court: But you have heard the negotiations that have been recited in the record about the cap of five years. I can't give you any more than that. And if the guidelines come back where you get less than five, you have a right to appeal if I give you any more than the guidelines. Do you understand that?

The Defendant: Yes.

A guidelines scoresheet was prepared for the burglary of a structure offense which resulted in a recommended guidelines sentence of community control or 12-30 months incarceration. A scoresheet for the grand theft offense was also prepared which resulted in a recommended guidelines sentence of community control or 12-30 months incarceration. At the sentencing hearing, the trial court sentenced appellant to 30 months for the burglary charge and 30 months for the grand theft charge, the sentences to run consecutively. Appellant's counsel did not object to the trial court's use of two scoresheets nor did he object that the sentence was greater than the recommended guidelines range. Apparently unaware that he had misapplied the guidelines, the trial judge did not enter a written order setting forth in writing his reasons for departure.

Pursuant to Rule 3.701(d)(3), Florida Rules of Criminal Procedure, separate guidelines scoresheets are to be prepared scoring each offense; but the trial judge should use only one scoresheet, the one recommending the most severe sentence range. In this case, scoring either count as the primary offense yielded a 12-30 month recommended range, so appellant's recommended guidelines sentence was 12-30 months. Although the trial court was required to impose a separate sentence for each of appellant's offenses the total sentence imposed should not have exceeded the recommended guidelines sentence of 12-30 months unless a written reason was given. Rule 3.701(d)(12), Fla.R.Crim.P. Since the trial court sentenced appellant to five years total he was required to enter a written statement delineating the reasons for departure. Rule 3.701(d)(11), Fla.R.Crim.P.

The state admits sentencing guidelines errors were committed, but contends that since appellant did not contemporaneously object at the sentencing hearing he has waived them.

In Key v. State, 452 So.2d 1147 (Fla. 5th DCA 1984), the court held that a defendant who enters a guilty plea and is sentenced in accordance with a plea agreement may appeal the sentence imposed, on the grounds it constitutes a departure from the guidelines, pursuant to section 921.001(5), Florida Statutes (1983). At the same time, the court recognized that a negotiated plea which includes an agreement that the defendant may be sentenced to imprisonment for a period of time in excess of the sentencing guidelines is a clear and convincing reason for departure from those guidelines. Accordingly, although the court took jurisdiction of the defendant's appeal, it affirmed on the grounds there was no error in departing in that case. See also Geter v. State, 473 So.2d 31 (Fla. 1st DCA 1985) (trial court could depart based upon "a plea conference-agreed upon cap of three years"); Green v. State, 460 So.2d 378 (Fla. 2d DCA 1984) (defendant elected to plead no contest in order to receive a sentence of no more than 12 years; therefore trial judge justified in honoring plea bargain and deviating from guidelines in sentencing defendant to concurrent 12 year terms of imprisonment rather than sentencing defendant within recommended guidelines range of 7-9 years); Coates v. State, 458 So.2d 1219 (Fla. 1st DCA 1984) (plea bargain did not specify permissible sentence and therefore trial court's departure from sentencing guidelines was improperly predicated upon assumption that defendant agreed to any sentence within the statutory maximum); and Bell v. State, 453 So.2d 478 (Fla. 2d DCA 1984) (the defendant agreed to a cap of 5 years and trial court deviated from guidelines, sentencing him to 5 years; appellate court affirmed, holding that defendant was bound by his plea bargain, which was not void merely because of defendant's selection of sentencing under the guidelines, which became available after the date of the plea, but before sentence).

Although the appellate courts in Florida are in apparent agreement that a negotiated plea constitutes a clear and sufficient reason...