Summary
holding that the absence of valid reasons for departure, requires reversal and remand for resentencing or withdrawal of the defendant's plea
Summary of this case from State v. DavisOpinion
No. 3D07-904.
March 12, 2008.
Appeal from the Circuit Court, Miami-Dade County, Dennis J. Murphy, J.
Bill McCollum, Attorney General, and Angel L. Fleming, Assistant Attorney General, for appellant.
Bennett H. Brummer, Public Defender, and Colleen Brady Ward, Assistant Public Defender, for appellee.
Before COPE, GREEN, and WELLS, JJ.
The State appeals a downward departure sentence. We reverse for further proceedings.
The State offered a downward departure sentence to defendant-appellant Laffayette Berry. When the case came before the trial court, the defendant requested, and the trial court indicated agreement in concept, on a shorter sentence than the State had offered. Had the State's downward departure offer remained open, then the trial court could have accepted the defendant's plea and imposed an even greater downward departure. State v. Aguilar, 775 So.2d 994, 996 (Fla. 3d DCA 2000).
The State timely withdrew its offer, however, and objected to the imposition of sentence below the guidelines minimum. Over objection, the trial court imposed a downward departure sentence without stating written reasons. The State has appealed.
In the absence of a valid reason for downward departure, we are obliged to reverse and remand for resentencing consistent with the guidelines, or to permit the defendant to withdraw his plea. State v. Green, 932 So.2d 365 (Fla. 3d DCA 2006). The defendant suggests that there is a valid reason for downward departure. That issue can be raised in the trial court on remand. As to the suggestion that a victim's consent can, in and of itself, constitute a valid downward departure reason, the parties' attention is invited to State v. Kasten, 775 So.2d 992 (Fla. 3d DCA 2000).
Reversed and remanded for further proceedings consistent herewith.