State v. Foburg

District Court of Appeal of Florida

State v. Foburg

552 So. 2d 314, 14 Fla. L. Weekly 2681, 1989 Fla. App. LEXIS 6407, 1989 WL 137726

District Court of Appeal of Florida·Decided November 17, 1989·No. No. 88-03065·Published

Opinion

PER CURIAM.

The state appeals the trial court’s order placing appellee Richard Foburg on community control to be followed by probation. Specifically, the state argues that the trial court erred in departing downward from the sentencing guidelines recommendation without providing justification in writing for doing so. State v. Jackson, 478 So.2d 1054 (Fla.1985).

The record on appeal contains neither a guidelines scoresheet nor a written departure order. Thus we are unable to determine exactly what the recommended sentence was, although since Foburg previously had been on probation some amount of imprisonment was at least an option. Fla.R.Crim.P. 3.701(d)(14). The trial court did acknowledge a downward departure on the record, referring to a “disposition understanding,” which we interpret as a plea agreement and which ordinarily would permit a deviation from the recommended sentence. See, e.g., Orsi v. State, 515 So.2d 268 (Fla. 2d DCA 1987). However, the state has furnished us with an additional transcript excerpt, apparently from the same hearing, wherein the prosecutor asserted that “[t]he state is objecting to this negotiated plea.”

Accordingly, we remand this case to the circuit court for preparation of a guideline scoresheet and, assuming the present sentence represents a departure therefrom, a written order providing clear and convincing reasons for such departure.

DANAHY, A.C.J., and HALL and PATTERSON, JJ., concur.

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PER CURIAM.

The state appeals the trial court’s order placing appellee Richard Foburg on community control to be followed by probation. Specifically, the state argues that the trial court erred in departing downward from the sentencing guidelines recommendation without providing justification in writing for doing so. State v. Jackson, 478 So.2d 1054 (Fla.1985).

The record on appeal contains neither a guidelines scoresheet nor a written departure order. Thus we are unable to determine exactly what the recommended sentence was, although since Foburg previously had been on probation some amount of imprisonment was at least an option. Fla.R.Crim.P. 3.701(d)(14). The trial court did acknowledge a downward departure on the record, referring to a “disposition understanding,” which we interpret as a plea agreement and which ordinarily would permit a deviation from the recommended sentence. See, e.g., Orsi v. State, 515 So.2d 268 (Fla. 2d DCA 1987). However, the state has furnished us with an additional transcript excerpt, apparently from the same hearing, wherein the prosecutor asserted that “[t]he state is objecting to this negotiated plea.”

Accordingly, we remand this case to the circuit court for preparation of a guideline scoresheet and, assuming the present sentence represents a departure therefrom, a written order providing clear and convincing reasons for such departure.

DANAHY, A.C.J., and HALL and PATTERSON, JJ., concur.

State v. Foburg, 552 So. 2d 314, 14 Fla. L. Weekly 2681, 1989 Fla. App. LEXIS 6407, 1989 WL 137726 (Fla. Ct. App. 1989).

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