Florida District Courts of Appeal, 1987

Noger v. State

Noger v. State
Florida District Courts of Appeal · Decided December 16, 1987 · Campbell, Frank, Scheb
516 So. 2d 1080; 12 Fla. L. Weekly 2907; 1987 Fla. App. LEXIS 11629; 1987 WL 2899 (Southern Reporter, Second Series)

Noger v. State

Opinion of the Court

PER CURIAM.

Although appellant’s sentencing guidelines scoresheet warranted a sentence in the nine to twelve year range, the court sentenced appellant to thirty years in prison. The court’s written reason for departure was that appellant failed to appear at his sentencing hearing in violation of a condition of a plea agreement.

Under Williams v. State, 500 So.2d 501 (Fla. 1986), “departing from the guidelines because a defendant has failed to appear is not permissible as it does not constitute a clear and convincing reason for departure.” Id. at 502.

Because the court departed specifically for this reason, the state concedes, and we agree, that this court should vacate appellant’s thirty year sentence and remand to the trial court for sentencing within the guidelines range.

Sentence vacated; remanded for resen-tencing in accord with this opinion.

SCHEB, Acting C.J., and CAMPBELL and FRANK, JJ., concur.

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