State v. Ellis, 715 So. 2d 364

State v. Ellis

715 So. 2d 364 | Fla. Dist. Ct. App. | 1998

Concurrence Opinion

HARRIS, Judge,

concurring and concurring specially:

I agree that the cause must be reversed because the record does not support the downward departure. I write to explain why I agree that the defendant should be permitted to withdraw his plea rather than merely being resentenced to a guideline sentence.

This is another case in which the trial judge, over the objections of the State, entered into his own agreement with the defendant. The defendant agreed with the State to plead to certain counts of the information in exchange for a nol prosse of other counts and the State’s recommendation for a guideline sentence. Under this agreement, the court would not be required to accept the State’s recommendation and could, with appropriate record support and for sufficient reason, either upward or downward depart. But the problem here is that the defendant would not accept the State’s agreement unless the court agreed to downward depart even though the State would not agree to that condition. The record reflects the following agreement by the court relating to the sentence for this felony as understood by the defendant:

DEFENSE ATTORNEY: In accordance with [the plea agreement] the State is seeking a guideline sentence, and would be nolle prossing count two of the information. The court has indicated that it would sentence Mr. Ellis to 51 weeks in the Orange County jail with credit for time served followed by one year of community control ...

In State v. Herrick, 691 So.2d 540 (Fla. 5th DCA 1997), we questioned the authority of the court to enter into a plea agreement without the State’s concurrence. In State v. Gitto, 1998 WL 335787 (Fla. 5th DCA 1998), we held that no such authority exists. It is the defendant’s reliance on the court’s unauthorized agreement to downward depart that justifies our permitting him to withdraw his *365pleas. If he elects to stand by his pleas, then the court should sentence him to a guideline sentence.

Lead Opinion

PER CURIAM.

Ellis pled to two counts of possession of cocaine. In return, the State entered a nolle prosequi to various other drug charges. At sentencing the trial judge, over the State’s objection, imposed downward departure sentences. No reasons were orally pronounced for the departure; however, attached to the scoresheet is a page listing numerous reasons for departure. A box was checked next to “Defendant requires specialized treatment for addiction, mental disorder, or physical disability, and the defendant is amenable to treatment.”

As the State points out, even if this procedure is deemed compliant with the rule,1 the record is devoid of any evidence supporting such finding. See State v. Hill, 698 So.2d 647, 648 (Fla. 5th DCA 1997); see also State v. Kennedy, 698 So.2d 349, 351 (Fla. 4th DCA 1997). Accordingly, we reverse and remand. Upon remand, a guideline sentence must be imposed, or alternatively, Ellis may withdraw his plea. State v. McGriff, 698 So.2d 331 (Fla. 2d DCA 1997).

REVERSED and REMANDED.

W. SHARP and GOSHORN, JJ., concur. HARRIS, J., concurs and concurs specially, with opinion.

. Fla. R.Crim. P. 3.703(d)(30)(A).