State v. Malloy

23 So. 3d 1292, 2010 Fla. App. LEXIS 36, 2010 WL 21086

Opinion

SCHWARTZ, Senior Judge.

The appellee’s only defense to a clearly unjustified court-offered plea bargain to a downward departure sentence, the alleged existence of a state offer, is itself completely without merit. This is so because the offer, which was tendered prior to a hearing on the defendant’s dispositive motion to suppress, was clearly and effectively withdrawn after that motion was denied.¹ See State v. Berry, 976 So.2d 645 (Fla. 3d DCA 2008); State v. Watson, 971 So.2d 946, 947 (Fla. 3d DCA 2007). Hence, the departure sentence is vacated and the cause is remanded with directions to enter a guideline sentence or to permit the defendant to withdraw her plea. See State v. Smith, 23 So.3d 229 (Fla. 3d DCA 2009); State v. Armenteros, 19 So.3d 432 (Fla. 3d DCA 2009).

Reversed and remanded.

1 . MS. BEIGEL [defense attorney]: At this point, I would just like to put on the record that my client said that she would like to counteroffer with credit time served at this point. I know that was the offer before the motion. I’m hoping that just because we did the motion doesn’t mean that the State is going to pull their offer.

THE COURT: No.

MR. AROCA [state attorney]: The State is not — the State announced yesterday that we are going to litigate this case.

THE COURT: I’m not going to punish her for litigating the motion to suppress. If she wants to close it out credit time served, I will still offer it from the bench.

MS. BEIGEL: Judge, she would like to accept.

THE COURT: Okay. MR. AROCA: Your Honor, we ask you to reconsider. There is the bottom of the guidelines, there is no reason for the Court to mitigate the sentence to go below the guidelines. There is no reason whatsoever and Your Honor, we can’t go like that.

THE COURT: I know.

MR. AROCA: We can’t go like that. We explained yesterday and there is a reason and certainly it's over the State’s objection.

THE COURT: Are you going to make any offer at all, Mr. Aroca?

MR. AROCA: Well, if they counteroffer our official offer — if they offer something, we will listen. We are open to listen.

THE COURT: Mr. Aroca, I understand how—

MR. AROCA: We are not going to offer anything.