Opinion
No. 95-02017.
February 23, 1996. Rehearing Denied April 2, 1996.
Appeal from the Circuit Court for Pinellas County; Joseph G. Donahey, Judge.
Robert A. Butterworth, Attorney General, Tallahassee, and Dale E. Tarpley, Assistant Attorney General, Tampa, for Appellant.
Leonard A. Sands of Sands Moskowitz, P.A., Coconut Grove, for Appellee.
The state appeals the downward departure sentence imposed on Nehemias Martinez. We reverse and remand for further proceedings.
The trial court's reason for departure was that Martinez required specialized treatment for drug addiction and he was amenable to such treatment. There is no evidence, however, that Martinez had a drug addiction problem. See State v. Lemon, 664 So.2d 1072 (Fla. 2d DCA 1995). Accordingly, we reverse and remand for resentencing within the guidelines. In light of the fact that Martinez sentence was the result of a plea agreement with the trial court, Martinez should be given the opportunity to withdraw his plea on remand. State v. Bryant, 658 So.2d 652 (Fla. 2d DCA 1995).
Martinez was charged with trafficking in 28 to 200 grams of cocaine pursuant to section 893.135(1)(b)1.a., Florida Statutes (1993), and must, therefore, be sentenced in accord with the sentencing guidelines. Cf. § 893.135(1)(b)1.c.
Reversed and remanded for further proceedings with directions.
CAMPBELL, A.C.J., and LAZZARA and QUINCE, JJ., concur.