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495 So. 2d 283

495 So.2d 283

11 Fla.L.Weekly 2109

Docket No. 85-2169.

State v. Wagner

STATE of Florida, Appellant, v. Thomas WAGNER, Appellee.

District Court of Appeal of Florida

Decided October 3, 1986.

District Court of Appeal of Florida · decided 1986-10-03

Cited by 4 later decisions — most recently January 2001

4 state decisions

Key passage — most relied on by later courts

“[S]ince Wagner has commenced service of his sentence, he may not be resentenced to a greater term of imprisonment. Such a sentence would constitute double jeopardy. Troupe v. Rowe, 283 So.2d 857 (Fla. 1973); Hinton v. State, 446 So.2d 712 (Fla. 2d DCA 1984).”

quoted by 3 later decisions, including 774 So. 2d 924 - Trotter v. State, 596 So. 2d 711 - Gonzalez v. State

Relies on 478 So. 2d 1054 - State v. Jackson · 283 So. 2d 857 - Troupe v. Rowe · Myrick v. State

Good law ✅— No negative treatment on recordhow we know

Decided 1986-10-03

View the full empirical analysis of this case →

¶1Jim Smith, Atty. Gen., Tallahassee, and Peggy A. Quince, Asst. Atty. Gen., Tampa, for appellant.

¶2John D. Fernandez, Clearwater, for appellee.

¶3PER CURIAM.

¶4In 1981, Thomas Wagner was sentenced to ten years for importing marijuana. He appealed and, in 1983, this court affirmed. Smith v. State (Thomas Wagner), 438 So.2d 10 (Fla. 2d DCA 1983). Wagner failed to appear to serve his sentence and remained a fugitive until 1985. Upon his recapture, he was charged with the felony of failing to appear to which he pled guilty on the understanding that he would receive a two-year sentence to run concurrently with the ten-year marijuana sentence. The court imposed the two-year concurrent sentence. This constituted a departure from the recommended guidelines range of any nonstate prison sanction. We reverse.

¶5A plea bargain may constitute a clear and convincing reason for a departure from the guidelines. Bell v. State,453 So.2d 478 (Fla. 2d DCA 1984). The record in this case, however, does not support Wagner's contention that he and the state ever struck an agreement that Wagner would receive a two-year concurrent sentence in exchange for his guilty plea. Thus, there was no plea bargain upon which the trial court could base a departure in this case.

¶6There are additional deficiencies in the record which require our reversal. While it appears that the presumptive guidelines range was "any nonstate prison sanction," no scoresheet was prepared. Further, no written reasons supporting a departure were ever entered by the court. Rule 3.701(d)(1) and (11), Florida Rules of *284 Criminal Procedure, require the preparation of a scoresheet and the entry of written reasons for any departure. Consequently, we reverse for resentencing in accord with State v. Jackson,478 So.2d 1054 (Fla. 1985), Kennedy v. State,490 So.2d 195 (Fla. 2d DCA 1986), and Myrick v. State,461 So.2d 1359 (Fla. 2d DCA 1984), for preparation of a scoresheet and a written order indicating the court's clear and convincing reasons for its departure sentence.

¶7We further comment that since Wagner has commenced service of his sentence, he may not be resentenced to a greater term of imprisonment. Such a sentence would constitute double jeopardy. Troupe v. Rowe,283 So.2d 857 (Fla. 1973); Hinton v. State,446 So.2d 712 (Fla. 2d DCA 1984).

¶8Reversed and remanded for resentencing.

¶9DANAHY, C.J., and CAMPBELL and LEHAN, JJ., concur.

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