State v. Zumpf

728 So.2d 347 (1999)

STATE of Florida, Appellant,
v.
George O. ZUMPF, Sr., Appellee.

No. 98-02507.

District Court of Appeal of Florida, Second District.

March 17, 1999.

Robert A. Butterworth, Attorney General, Tallahassee, and Erica M. Raffel, Assistant Attorney General, Tampa, for Appellant.

Robert O. Bauer, Jr., Clearwater, for Appellee.

WHATLEY, Judge.

In this appeal of George O. Zumpf's downward departure sentence, the State contends that a preponderance of the evidence does not support the reason given for mitigation. That reason was Zumpf's cooperation with the State. The only support for this reason was statements by defense counsel. This is insufficient because testimony or evidence must be presented. See State v. Licea, 707 So.2d 1155, 1157 (Fla. 2d DCA 1998).

Accordingly, we reverse Zumpf's sentence. Because the sentence was the result of a plea agreement, upon remand Zump'f must be given the opportunity to withdraw his plea and proceed to trial. If he declines that opportunity, the trial court must impose a guidelines sentence.

Reversed and remanded with directions.

FULMER, A.C.J., and NORTHCUTT, J., Concur.