Opinion
No. 1D99-1929, 1D99-2606.
Opinion filed December 1, 2000.
An appeal from the Circuit Court for Leon County, Don Modesitt, Acting Judge.
Reversed and Remanded.
Nancy A. Daniels, Public Defender, and Carol Ann Turner, Assistant Public Defender, Tallahassee, Attorneys for Appellant.
Robert A. Butterworth, Attorney General, and Edward C. Hill, Jr., Assistant Attorney General, Tallahassee, Attorneys for Appellee.
The State appeals Appellee's downward departure sentences. We have jurisdiction. § 924.07(1)(i), Fla. Stat.; Fla.R.App.P. 9.140(c)(1)(K).
The trial court's articulated reason for departure was not a valid basis for departure under section 921.0016(4)(a), Florida Statutes, or under the circumstances of this case. See generally Maselli v. State, 446 So.2d 1079 (Fla. 1984) (citing Russ v. State, 313 So.2d 758 (Fla.), cert. denied, 423 U.S. 924 (1975)); State v. Green, 667 So.2d 959 (Fla. 2d DCA 1996) (citing Russ, supra). In light of our holding, we find it unnecessary to address the other issue raised, downward departure based upon a plea agreement between the trial court and Appellee, to which the State was not a party. Accordingly, we reverse and remand with directions to the trial court to give Appellee an opportunity to withdraw his admission to violation of probation and for further proceedings.
The trial court departed from the sentencing guidelines because Appellee agreed to waive his appeal of a misdemeanor conviction for disorderly conduct, his arrest for which was a basis for the affidavit of violation of probation filed against him in the instant case.
See State v. Kennedy, 698 So.2d 349, 351 (Fla. 4th DCA 1997) (citing State v. Herrick, 691 So.2d 540 (Fla. 5th DCA 1997); State v. Honiker, 675 So.2d 681, 682 n. 1 (Fla. 2d DCA 1996); and State v. Williams, 616 So.2d 187 (Fla. 4th DCA 1993)), receded from on other grounds by Welling v. State, 748 So.2d 314 (Fla. 4th DCA 1999), rev. denied, (Fla. 2000); see also State v. Warner, 721 So.2d 767, 769 n. 2 (Fla. 4th DCA 1998) (dicta) (citing Kennedy, supra), approved, 762 So.2d 507 (Fla. 2000).
Appellee will be permitted to appeal his conviction in the related misdemeanor case.
BOOTH and BENTON, JJ., and SHIVERS, DOUGLASS B., Senior Judge, CONCUR.