State v. Castanedo

523 So. 2d 1253 (1988)

The STATE of Florida, Appellant,
v.
Nancy CASTANEDO, Appellee.

No. 87-2978.

District Court of Appeal of Florida, Third District.

April 26, 1988.

Robert A. Butterworth, Atty. Gen., Susan Odzer Hugentugler, Asst. Atty. Gen., for appellant.

Bennett H. Brummer, Public Defender, for appellee.

Before SCHWARTZ, C.J., and NESBITT and JORGENSON, JJ.

PER CURIAM.

The state appeals the trial court's downward departure from the sentencing guidelines. We reverse.

The defendant pled guilty to two counts of sale and delivery of cocaine and two counts of possession of cocaine, violations of section 893.13, Florida Statutes (1987), in exchange for the court's offer to sentence her to 364 days in the county jail. The presumptive guidelines sentence for the offenses was two and one-half to three and one-half years imprisonment. The court dictated into the record three reasons for the departure.

We find no support in the record for the court's first reason: that the defendant was addicted to drugs. The second reason, the small amount of cocaine involved, is an invalid basis for departure, Atwaters v. State, 519 So. 2d 611 (Fla. 1988); State v. Mesa, 520 So. 2d 328 (Fla. 3d DCA 1988), as is the third reason, that the defendant can be rehabilitated, State v. Thomas, 516 So. 2d 1058 (Fla. 3d DCA 1987); State v. Myers, 515 So. 2d 333 (Fla. 3d DCA 1987). Ordinarily, the court's failure to submit a written statement reciting these reasons would require this court to remand directing the trial judge to comply with Florida Rule of Criminal Procedure 3.701(d)(11). However, because all of the recited grounds are invalid, the trial court may not enunciate new reasons to support a departure sentence. Shull v. Dugger, 515 So. 2d 748 (Fla. 1987); Harrison v. State, 523 So. 2d 726 (Fla. 3d DCA 1988). Thus, there is no need for a written statement.

Because the defendant was improperly sentenced after accepting the court's offer of a reduced sentence in return for a plea of guilty, the defendant may either be resentenced in accordance with the sentencing guidelines or permitted to withdraw her plea and go to trial.

Reversed and remanded.