Opinion
Case No. 2D05-1594.
Opinion filed January 27, 2006.
Appeal from the Circuit Court for Collier County, Lawrence D. Martin, Judge.
Charles J. Crist, Jr., Attorney General, Tallahassee, and Ronald Napolitano, Assistant Attorney General, Tampa, for Appellant.
Michael Schneider, Naples, for Appellee.
The State challenges the trial court order granting David Joseph Szempruch's postconviction motion to mitigate his sentences on two counts of grand theft and one count of forgery to which he entered negotiated no contest pleas. We reverse and remand.
After accepting Szempruch's pleas and conducting a thorough plea colloquy, the trial court sentenced him pursuant to the plea agreement to three concurrent terms of forty-two months' prison and imposed restitution in the amount of $55,000 to be paid within five years of his release from prison. Subsequently, Szempruch moved to mitigate his sentence. Following a hearing, the trial court granted the motion and resentenced Szempruch to three consecutive one-year terms of community control, followed by probation. At the time the modified sentence was entered, the trial court asked the State whether there was any legal reason why the new sentence could not be entered, and the State could not give a reason.
On appeal, the State argues that the trial court erred in modifying the sentence because the original sentence was imposed pursuant to a negotiated plea. We agree. In State v. Brooks, 890 So. 2d 503 (Fla. 2d DCA 2005), this court reversed in a similar situation. In that case, in exchange for Brooks' plea, the State agreed to a downward departure sentence and a reduction of the charge. Subsequently, upon Brooks' Florida Rule of Criminal Procedure 3.800(c) motion, the trial court modified the sentence, converting the remainder of the incarcerative portion of the sentence to probation.
In reversing the modified sentence, this court quoted the Fifth District's opinion in State v. Swett, 772 So. 2d 48, 52 (Fla. 5th DCA 2000), as follows:
"The sentence was part of a quid pro quo and the defendant cannot accept the benefit of the bargain without accepting its burden." To allow a defendant to use a rule 3.800(c) motion to evade a negotiated plea" would discourage the state from entering into plea bargains in the future."
Brooks, 890 So. 2d at 505. Additionally, this court noted that "[a]s part of the negotiated plea, Brooks and the State agreed to a reduced charge and to specific downward departure sentences." Id.
Here, pursuant to the negotiated plea agreement, Szempruch received the lowest permissible sentence and the State nolle prossed two counts of organized fraud and two counts of forgery brought against Szempruch under a separate case number. As such, Szempruch definitely accepted the benefit of his bargain. Based on this court's opinion in Brooks, because the original sentence was the result of a negotiated plea, the trial court erred in modifying Szempruch's sentence.
On appeal, Szempruch argues that the State did not preserve this issue for appeal by objecting to the modification below on these specific grounds. We disagree. Although the State did not give legal grounds for objecting, it made it clear to the trial court that it opposed the downward departure and would be appealing. That was sufficient to preserve the issue. See State v. Barnes, 753 So. 2d 605, 607 (Fla. 2d DCA 2000) (finding issue preserved where "State asserted its objection to departing downward from the guidelines sentence" before the trial judge imposed sentence).
Accordingly, we reverse and remand with directions to the trial court to reinstate Szempruch's original negotiated sentence.
Reversed and remanded.
STRINGER and WALLACE, JJ., Concur.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED.