State v. Davis

District Court of Appeal of Florida

State v. Davis

63 So. 3d 891, 2011 Fla. App. LEXIS 8972, 2011 WL 2415851

CourtDistrict Court of Appeal of Florida

DecidedJune 17, 2011

Docket5D10-3433

StatusPublished

This text of 63 So. 3d 891 (State v. Davis) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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State v. Davis, 63 So. 3d 891, 2011 Fla. App. LEXIS 8972, 2011 WL 2415851 (Fla. Ct. App. 2011).

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Opinion

PER CURIAM.

The State of Florida appeals the probationary sentence imposed on Charles F. Davis, following his plea to a charge of aggravated battery with a deadly weapon. Davis scored a minimum sentence of 21.3 months in prison on his Criminal Punishment Code scoresheet. Over the State’s objection, the trial court departed downward, explaining that: “Given Mr. Davis’s almost complete absence of a prior record, a downward departure is appropriate in this case.... ” This is not a valid basis for departure. State v. Stephenson, 973 So.2d 1259, 1264 (Fla. 5th DCA 2008) (“The trial court lacks discretion to grant a downward departure sentence based on factors already taken into account by the sentencing guidelines.... A defendant’s prior criminal record, or lack thereof, is one such factor.”) (internal citations omitted). As the trial judge gave no other reason for imposing a departure sentence, we reverse the sentence and remand for a new sentencing hearing. 1 See Jackson v. State, 64 So.3d 90 (Fla.2011).

REVERSED AND REMANDED FOR RESENTENCING.

PALMER, LAWSON, and EVANDER, JJ., concur.

1

. If Davis’ plea was induced by the trial judge’s promise of a probationary sentence, as the record suggests, Davis must also be allowed to withdraw his plea if no valid basis for downward departure is found on remand. See State v. Jackson, 55 So.3d 682 (Fla. 5th DCA 2011).

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PER CURIAM.

The State of Florida appeals the probationary sentence imposed on Charles F. Davis, following his plea to a charge of aggravated battery with a deadly weapon. Davis scored a minimum sentence of 21.3 months in prison on his Criminal Punishment Code scoresheet. Over the State’s objection, the trial court departed downward, explaining that: “Given Mr. Davis’s almost complete absence of a prior record, a downward departure is appropriate in this case.... ” This is not a valid basis for departure. State v. Stephenson, 973 So.2d 1259, 1264 (Fla. 5th DCA 2008) (“The trial court lacks discretion to grant a downward departure sentence based on factors already taken into account by the sentencing guidelines.... A defendant’s prior criminal record, or lack thereof, is one such factor.”) (internal citations omitted). As the trial judge gave no other reason for imposing a departure sentence, we reverse the sentence and remand for a new sentencing hearing. 1 See Jackson v. State, 64 So.3d 90 (Fla.2011).

REVERSED AND REMANDED FOR RESENTENCING.

PALMER, LAWSON, and EVANDER, JJ., concur.

1

. If Davis’ plea was induced by the trial judge’s promise of a probationary sentence, as the record suggests, Davis must also be allowed to withdraw his plea if no valid basis for downward departure is found on remand. See State v. Jackson, 55 So.3d 682 (Fla. 5th DCA 2011).

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63 So. 3d 891, 2011 Fla. App. LEXIS 8972, 2011 WL 2415851, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-davis-fladistctapp-2011.

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