Florida Court Cases - Case Law and Opinions from the Courts of Florida - unoffical reports - Opinions

ROMINGER LEGAL

Florida Case Law & Florida Court Opinions - Florida Law

Need Legal Help?

LEGAL RESEARCH CENTER

LEGAL HEADLINES - CASE LAW - LEGAL FORMS

NOT FINDING WHAT YOU NEED? -CLICK HERE

This court case was taken from the Florida Court's web site. Search our site for more cases - CLICK HERE

IN THE DISTRICT COURT OF APPEAL
FIRST DISTRICT, STATE OF FLORIDA
NOT FINAL UNTIL TIME EXPIRES TO
STATE OF FLORIDA
FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
Appellant,
v.
CASE NO. 1D03-0465
FURMAN FANT
Appellee.
_____________________________/
Opinion filed June 18, 2004.
An appeal from the Circuit Court for Duval County.
W. Gregg McCaulie, Judge.
Charlie Crist, Attorney General; Charlie McCoy, Senior Assistant Attorney General,
Tallahassee, for appellant.
Judy Groover, of Law Offices of Judy L. Groover, Jacksonville, for appellee.
PER CURIAM.
The state appeals the downward departure sentence imposed in this case. The
trial court clearly stated its reasons for departure on the record, one of which was the
appellant's need for drug treatment. While the need for drug treatment alone would
not be a proper basis for departure, State v. Shorter, 814 So. 2d 1117 (Fla. 4th DCA

2002), the other reasons stated by the court to support its downward departure
sentence are valid and are supported by competent substantial evidence received from
testimony presented during the sentencing proceedings and in the record on appeal.
"An appellate court is obliged to uphold a departure sentence if one of the reasons for
the departure is valid, even if the remaining departure reasons are invalid." Id. at 1118
(quoting Perry v. State, 714 So. 2d 563, 564 (Fla. 1st DCA 1998)).
Only one issue requires further clarification. The state argues that the only
agreement by the state below was for a sentence "in the guidelines range," with a cap
of ten years. Accordingly, the state maintains, the trial court's departure sentence was
in violation of the plea agreement and must be reversed, citing State v. Gitto, 731 So.
2d 686 (Fla. 5th DCA 1998) (en banc), quashed on other grounds, Silas v. State, 781
So. 2d 1082 (Fla. 2001). In State v. Gitto, the court ruled,
[T]he trial court's acceptance of a plea over the prosecutor's objection
is clear error which requires outright reversal of any sentence entered in
reliance of such a plea. . . .
Id. at 691.
We find the state's reliance upon State v. Gitto is misplaced for the reason that
the record before us fails to support the state's position that the trial court was bound
by a plea agreement calling for a sentence within the guidelines. We would agree that
2

the terms of the plea agreement below were somewhat inartfully stated.1 However, at
no time do we find the prosecutor below advising the trial court that the plea agreement
called for a sentence "in the guidelines range." On the other hand, we find several
statements by defense counsel, unchallenged by the prosecutor, referring to the range
of sentencing as contemplating "anything from zero to ten years," or words to that
effect. Furthermore, the only "objection" by the prosecutor was at the final sentencing
hearing, just after the court's adjudication of guilt and just prior to the pronouncement
of sentence. At that point the prosecutor stated,
If I may state for the record, the reason we're pursuing prison for Mr.
Fant and would object to anything below the guidelines is because based
on the facts and circumstances of the cases, Mr. Fant was the more
responsible party. He was also significantly older than the other person
involved. . . .
It is clear that the state's objection to "anything below the guidelines" was based on
the "facts and circumstances" of the offenses, and not upon the terms and conditions
of the plea agreement. The state had ample opportunity below, on four separate
occasions, to assert the position it now maintains for the first time on appeal.
Accordingly, the conviction and sentence is affirmed.
1That there might have been some confusion below may be
reflected in the statement found in Appellant's Initial Brief:
"The State thought Fant was pleading to a sentence in the
guidelines range, not exceeding ten years. Defense counsel
thought otherwise . . . ."
3

	ROMINGER LEGAL
		Florida Case Law & Florida Court Opinions - Florida Law
					Need Legal Help?
					Need Legal Help?
LEGAL RESEARCH CENTER
LEGAL RESEARCH CENTER			LEGAL HEADLINES - CASE LAW - LEGAL FORMS	NOT FINDING WHAT YOU NEED? -CLICK HERE