State v. Preston

Full title: STATE OF FLORIDA, APPELLANT, v. CLARENCE L. PRESTON, APPELLEE

Court: District Court of Appeal of Florida, Second District

Date published: Aug 11, 1993

622 So. 2d 169 (Fla. Dist. Ct. App. 1993)

Opinion

No. 92-04175.

August 11, 1993.

Appeal from the Circuit Court, Hillsborough County, Diana M. Allen, J.

Robert A. Butterworth, Atty. Gen., Tallahassee, and Erica M. Raffel, Asst. Atty. Gen., Tampa, for appellant.

James Marion Moorman, Public Defender, and Kevin Briggs, Asst. Public Defender, Bartow, for appellee.

PER CURIAM.

The state appeals the downward departure sentence imposed upon the appellee, Clarence L. Preston, after he pled guilty to third degree felony petit theft. We reverse.

The trial court's stated reason for the downward departure was the minimal value of the property taken. This reason is an invalid basis for downward departure. State v. Lisk, 523 So.2d 1260 (Fla. 2d DCA 1988), rev. denied, 531 So.2d 168 (Fla. 1988).

Since the reason for departure is invalid, we reverse the sentence. On remand, however, the appellee should be given an opportunity to withdraw his plea because the record indicates he entered the plea in exchange for the departure sentence he received. State v. Brown, 542 So.2d 1371 (Fla. 4th DCA 1989).

Reversed and remanded.

FRANK, C.J., and SCHOONOVER and PATTERSON, JJ., concur.