Opinion
No. 98-01953.
Opinion filed May 19, 1999. Opinion Denying Rehearing July 9, 1999.
An appeal from the Circuit Court for Monroe County, Ruth Becker, Judge, L.T. Nos. 97-228, 97-30262, 98-30054, 98-30065.
Bennett H. Brummer, Public Defender, and Julie M. Levitt, Assistant Public Defender, for appellant.
Robert A. Butterworth, Attorney General, and Dominique T. Suite-Brown, Assistant Attorney General, for appellee.
Before NESBITT, COPE and LEVY, JJ.
Carol Hanna appeals sentences imposed after a guilty plea, contending that the sentences are illegal. The State concedes that the twenty-two-month sentences imposed on the misdemeanor offenses are illegal. Consequently, we reverse the misdemeanor sentences and remand for resentencing.
With respect to circuit court case number 97-228, the trial court on remand must correct the judgment to conform to the plea agreement. In that case, defendant-appellant Hanna was charged with a violation of section 951.22, Florida Statutes (1997), a third-degree felony. The written plea agreement reflects that the defendant would be allowed to plea to a lesser charge, the intent being that the defendant would plea to an appropriate misdemeanor. The probation order reflected, however, a plea of guilty to a violation of section 944.47, Florida Statutes, which is also a felony. After revocation of probation, a judgment was entered reflecting that the offense at conviction was section 951.22 (which is a felony), but the judgment classifies the offense as a first-degree misdemeanor.
The State contends that once the defendant violated probation on what was clearly intended to be a misdemeanor, the trial court is allowed to reinstate the original felony charge and impose a felony sentence. The State has cited no authority which supports that proposition, and we know of none. The plea agreement in circuit court case number 97-228 was for a guilty plea to a misdemeanor offense. Under the applicable statute, "If such probation . . . is revoked, the court shall adjudge the probationer . . . guilty of the offense charged and proven or admitted, unless he or she has previously been adjudged guilty, and impose any sentence which it might have originally imposed before placing the probationer . . . on probation. . . ." § 948.06(1), Fla. Stat. (1997) (emphasis added). Upon violation of probation, therefore, the court may resentence the defendant, but is not permitted to adjudicate the defendant guilty of a different charge. Because the judgment in circuit court case number 97-228 is inconsistent with the plea agreement, we reverse the judgment and remand for entry of a judgment and sentencing order consistent with the plea agreement.
The defendant also contends, and the State concedes, that she is entitled to additional credit for time served on the two cases bearing 1997 case numbers. The sentencing orders in those two cases are reversed and remanded for additional credit for time served.
Affirmed in part, reversed in part, and remanded for further proceedings consistent herewith.
On Rehearing
By motion for rehearing Ms. Hanna argues that the sentences imposed for her felony convictions violate the plea agreement.
Defendant Hanna entered into a written plea agreement which provided for imposition of a guidelines sentence in multiple cases.
Defendant's guidelines scoresheet calculation was for 16.8 state prison months. Under the applicable guidelines statute, a sentence must be within the "guidelines unless there is a departure sentence with written findings." § 921.001(5), Fla. Stat. (1997). However, "[a] person sentenced for a felony committed on or after July 1, 1997, who has at least one prior felony conviction and whose minimum recommended sentence is less than 22 months in state prison may be sentenced to a term of incarceration not to exceed 22 months." Id.
The defendant argues that as a matter interpretation of the plea agreement, the guidelines sentence was 16.8 months as shown on the scoresheet, and not the twenty-two months which is allowed to the trial judge under the statute. She argues that her twenty-two-month sentences in the felony cases must be reduced accordingly.
For two reasons, we disagree. First, the transcript of the sentencing proceedings makes clear that all parties, including the defendant, understood that under this plea agreement, the trial judge was permitted to impose up to a twenty-two-month sentence. No one ever contended that the twenty-two-month figure was in any way a violation of the plea agreement. Instead, the parties argued about whether the trial judge should impose the maximum twenty-two-month sentence, or should exercise discretion to impose a lower sentence. This is a rather powerful indication of the intent and scope of the agreement.
Second, we think the twenty-two-month provision is properly viewed as being within the guidelines, because it is a sentence the trial court is allowed to impose without giving departure reasons. We reached a comparable result in construing an earlier version of the guidelines in Wick v. State, 651 So.2d 765, 766 (Fla. 3d DCA 1995).
Rehearing denied.