State v. Holley

702 So. 2d 601, 1997 WL 741237

• Court: District Court of Appeal of Florida
• Decided: December 3, 1997
• Docket: 96-03961
• Status: Published

Opinion

702 So.2d 601 (1997)

STATE of Florida, Appellant,
v.
Juanita HOLLEY, Appellee.

No. 96-03961.

District Court of Appeal of Florida, Second District.

December 3, 1997.

Robert A. Butterworth, Attorney General, Tallahassee, and Erica M. Raffel, Assistant Attorney General, Tampa, for Appellant.

James Marion Moorman, Public Defender, and Allyn Giambalvo, Assistant Public Defender, Clearwater, for Appellee.

WHATLEY, Judge.

The State appeals the downward departure sentence imposed on Juanita Holley. The trial court found that a downward departure sentence was appropriate because Holley required specialized treatment for her addiction, and she was amenable to such treatment. Holley agrees with the State that there was no evidence to support either finding. See State v. Cohen, 667 So.2d 438 (Fla. 2d DCA 1996); State v. Lemon, 664 So.2d 1072 (Fla. 2d DCA 1995). Therefore, we reverse Holley's sentence and remand for resentencing within the guidelines.

Since Holley's sentence was the result of a plea agreement between Holley and the trial court, Holley should be given the opportunity to withdraw her plea on remand. See Cohen, 667 So.2d at 439. If Holley withdraws her plea, the trial court may again sentence her to a downward departure sentence, providing the departure is based on competent substantial evidence. See State v. Gordon, 645 So.2d 140 (Fla. 3d DCA 1994), review denied, 652 So.2d 816 (Fla.1995).

Accordingly, we reverse Holley's sentence and remand for resentencing within the guidelines.

BLUE, A.C.J., and NORTHCUTT, J., concur.