State v. McCulloch

District Court of Appeal of Florida

State v. McCulloch

573 So. 2d 395, 1991 Fla. App. LEXIS 245, 1991 WL 3177

CourtDistrict Court of Appeal of Florida

DecidedJanuary 17, 1991

DocketNo. 90-1941

StatusPublished

Cited by2 cases

This text of 573 So. 2d 395 (State v. McCulloch) 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. McCulloch, 573 So. 2d 395, 1991 Fla. App. LEXIS 245, 1991 WL 3177 (Fla. Ct. App. 1991).

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Opinion

PER CURIAM.

Pursuant to a plea agreement which was accepted by the trial judge, defendant pled guilty to sexual battery, false imprisonment and battery in exchange for a sentence of 4½ years’ imprisonment followed by 10 years’ probation. A different judge presided at sentencing. The sentencing judge disregarded the agreement and entered a sentence constituting a downward departure from the presumptive guidelines sentence. Defendant concedes that remand is required because the sentencing judge erred in imposing the downward departure without providing written reasons. See Fla.R.Crim.P. 3.701(d)(11); Ree v. State, 565 So.2d 1329 (Fla.1990); State v. Cook, 571 So.2d 22 (Fla. 2d DCA 1990). Moreover, regardless of the improper departure, the sentence must be reversed. If a trial court rejects a plea agreement, it must afford the state the option to go to trial on all counts originally filed against the defendant. State v. White, 554 So.2d 1231 (Fla. 5th DCA 1990); State v. White, 532 So.2d 1083 (Fla. 5th DCA 1988); State v. Leija, 520 So.2d 705 (Fla. 5th DCA 1988). The trial court failed to give the State that option in this case. Accordingly, we remand for entry of a sentence in accordance with the agreement or, in the alternative, for a trial on all counts if the trial court finds the plea agreement unacceptable.

[396]*396REVERSED and REMANDED for re-sentencing.

GOSHORN, HARRIS and DIAMANTIS, JJ., concur.

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PER CURIAM.

Pursuant to a plea agreement which was accepted by the trial judge, defendant pled guilty to sexual battery, false imprisonment and battery in exchange for a sentence of 4½ years’ imprisonment followed by 10 years’ probation. A different judge presided at sentencing. The sentencing judge disregarded the agreement and entered a sentence constituting a downward departure from the presumptive guidelines sentence. Defendant concedes that remand is required because the sentencing judge erred in imposing the downward departure without providing written reasons. See Fla.R.Crim.P. 3.701(d)(11); Ree v. State, 565 So.2d 1329 (Fla.1990); State v. Cook, 571 So.2d 22 (Fla. 2d DCA 1990). Moreover, regardless of the improper departure, the sentence must be reversed. If a trial court rejects a plea agreement, it must afford the state the option to go to trial on all counts originally filed against the defendant. State v. White, 554 So.2d 1231 (Fla. 5th DCA 1990); State v. White, 532 So.2d 1083 (Fla. 5th DCA 1988); State v. Leija, 520 So.2d 705 (Fla. 5th DCA 1988). The trial court failed to give the State that option in this case. Accordingly, we remand for entry of a sentence in accordance with the agreement or, in the alternative, for a trial on all counts if the trial court finds the plea agreement unacceptable.

[396]*396REVERSED and REMANDED for re-sentencing.

GOSHORN, HARRIS and DIAMANTIS, JJ., concur.

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573 So. 2d 395, 1991 Fla. App. LEXIS 245, 1991 WL 3177, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-mcculloch-fladistctapp-1991.

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