Opinion
No. 89-369.
September 19, 1989. On Motion for Rehearing December 26, 1989.
Appeal from the Circuit Court, Monroe County, William R. Ptomey, J.
Bennett H. Brummer, Public Defender and N. Joseph Durant, Jr., Asst. Public Defender, for appellant.
Robert A. Butterworth, Atty. Gen. and Michael J. Neimand and Mark Dunn, Asst. Attys. Gen., for appellee.
Before SCHWARTZ, C.J., and HUBBART and JORGENSON, JJ.
The defendant appeals from a sentence in excess of the guidelines which is not supported by written — or oral — reasons for departure. We reverse.
The state's sole argument in support of this obviously facially defective sentence is the claim that Vaprin pled guilty to the charge "straight up" to the court, upon the general understanding that any sentence up to the statutory maximum could be imposed. See Smith v. State, 529 So.2d 1106 (Fla. 1988). We do not agree. In Smith, the proposed sentence in excess of the guidelines was agreed to by the defendant in exchange both for an undertaking not to impose a still heavier sentence upon a finding of clearly available grounds for departure, and in return for the dropping of other charges. In this case, while additional charges were indeed dropped by the prosecution, they were not shown to have increased the guideline range even if Vaprin had been convicted of them. Moreover, there was at no time any indication that grounds for departure existed. In other words, the state's version of the effect of the appellant's plea to the court, which would and did result in the court's right to sentence him to any term within the statutory requirement and without reason for departure, would mean not only that Vaprin received nothing in return for his guilty plea, but that he was in a positively worse position than if he had gone to trial and been found guilty. Such a one-sided misnamed "bargain" will not be enforced. See Madrigal v. State, 545 So.2d 392 (Fla. 3d DCA 1989).
Accordingly, the sentence under review is reversed and remanded with directions to resentence Vaprin within the guidelines.
ON MOTION FOR REHEARING
Our decision, dated September 19, 1989, reversing this cause for resentencing within the guidelines was necessarily based upon the assumption that the sentence actually imposed was above the applicable guideline range.
On motion for rehearing, however, the state for the first time calls our attention to the fact that the sentence was actually within the appropriate guidelines. The appellant does not dispute this claim. Accordingly, rehearing of our opinion of September 19, 1989, is granted and the judgment and sentence below are
Affirmed.