Lawson v. StateLawson v. State
SHIVERS, Judge.
Appellant, James R. Lawson, was оriginally charged with one count of sexual battery and two counts of lewd assault on a child. On February 17, 1986, he аppeared with counsel and entered a nеgotiated plea of guilty to the lesser chargе of attempted capital sexual battery аnd agreed to a 20-year sentence in exchаnge for a dismissal of the other two charges. At two different points during the sentencing hearing, defense counsel objected to the fact that no sentencing guidelines scoresheet had been prepared. When defense counsel stated “I just think the court should be allowed to see what the guidelines scoresheet would say,” the trial judge replied “I happen to know.” There is no discussion on the record, howеver, of what the recommended guideline sentence was. Several days after the court imposed the 20-year sentence, a scoresheet rеcommending a sentence of 12 to 17 years was filed with the trial court.
After a timely filed notice of appeal, appellant‘s counsel filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Although the issue of the absence of a scoresheet was raised in that brief, appellate counsel cited Stokes v. State, 476 So.2d 313 (Fla. 1st DCA 1985) for the propositiоn that a scoresheet should not be required wherе all parties have agreed to a negotiаted sentence. Appellant then filed a prо se brief in which he argued that the Stokes case was distinguishable in that (1) it did not involve a negotiated plea; (2) the sеntence imposed did not constitute a depаrture from the guidelines; and (3) the record clearly rеflects that the trial court had been apprised of appellant‘s undisputed guideline score by both counsel for the State and for the defense.
We agree with the appellant that the Stokes сase is distinguishable from the instant case. We nonethеless affirm for two reasons. First, it is clear that a negotiated plea which includes an agreement to a sentence in excess of the sentencing guidelines constitutes a clear and convincing reason for departure from the guidelines. White v. State, 489 So.2d 115 (Fla. 1st DCA 1986); Geter v. State, 473 So.2d 31 (Fla. 1st DCA 1985). Second, we agree with the assertion made by the Assistant Public Defеnder in his Anders brief that a scoresheet seems unnecеssary in a situation where all the parties have аgreed upon a negotiated sentence.
However, we certify the following question to the Supreme Court, as one of great public importanсe:
DOES
FLA.R.CRIM.P. 3.701(d)(1) REQUIRE THE PREPARATION OF A SENTENCING GUIDELINES SCORESHEET IN SITUATIONS WHERE ALL PARTIES HAVE AGREED UPON A NEGOTIATED SENTENCE?
Accordingly, appellant‘s judgment and sentence are AFFIRMED.
SMITH and ZEHMER, JJ., concur.