Florida Criminal Law Opinions

John M. Fitzgerald, Appellant,
v.
The State of Florida, Appellee. No. 3D09-1879. District Court of Appeal of Florida, Third District. Opinion filed September 23, 2009.

An Appeal under Florida Rule of Appellate Procedure 9.141(b)(2) from the Circuit Court for Miami-Dade County, Rosa I. Rodriguez, Judge, Lower Tribunal No. 91-37997-B.

John M. Fitzgerald, in proper person.

Bill McCollum, Attorney General, for appellee.

Before WELLS, SHEPHERD, and SUAREZ, JJ.

SHEPHERD, J.

John M. Fitzgerald appeals from the denial of his Florida Rule of Criminal Procedure 3.850 motion and from the trial court’s May 3, 2009 order prohibiting him from filing further pro se post-conviction motions. We affirm the denial of his Rule 3.850 motion because the motion is time barred. We are compelled to reverse the order prohibiting Fitzgerald from filing further pro se pleadings, however, as there is no indication in the record the trial court entered a show cause order before entering its order barring Fitzgerald from filing further pro se motions. On the contrary, the trial court sua sponte issued the order at the behest of the State, pursuant to its May 3, 2007 motion.

Because the trial court was required to provide Fitzgerald with notice of the intended sanction and an opportunity to respond thereto, we reverse the order prohibiting Fitzgerald from filing further pro se pleadings. See State v. Spencer, 751 So. 2d 47 (Fla. 1999); Morgan v. State, 983 So. 2d 1230 (Fla. 5th DCA 2008); Epps v. State, 941 So. 2d 1206 (Fla. 4th DCA 2006). On remand, should the trial court choose to pursue this sanction again, it first must provide Fitzgerald notice and an opportunity to show cause why the sanction should not be imposed. See Jordan v. State, 760 So. 2d 973 (Fla. 2d DCA 2000).

Affirmed in part, reversed in part, and case remanded with instructions.

Not final until disposition of timely filed motion for rehearing.

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The State of Florida, Appellant,
v.
Laffayette Berry, Appellee. No. 3D09-448 District Court of Appeal of Florida, Third District. Opinion filed September 23, 2009.

An Appeal from the Circuit Court for Miami-Dade County, Dennis J. Murphy, Judge, Lower Tribunal No. 06-14724.

Bill McCollum, Attorney General, and Lunar Claire Alvey, Assistant Attorney General, for appellant.

Carlos J. Martinez, Public Defender, and Marti Rothenberg, Assistant Public Defender, for appellee.

Before COPE, GERSTEN, and CORTIÑAS, JJ.

PER CURIAM.

The State of Florida (“the State”) appeals Laffayette Berry’s (“the defendant”) downward departure sentence. We reverse.

Based on a review of the record, we find that there was no competent substantial evidence presented to support the downward departure sentence. See State v. Grayson, 916 So. 2d 51, 53 (Fla. 2d DCA 2005) (finding that a trial court is required to find that, based on the evidence presented at the hearing, the defendant had a mental disorder that required specialized treatment; had a reasonable possibility of successful treatment; and required treatment that the Department of Corrections could not provide). Here, the trial court did not find that the Department of Corrections could not provide the treatment the defendant required.

Accordingly, we reverse and remand for further proceedings.

Reversed and remanded.

Not final until disposition of timely filed motion for rehearing.

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Stanley Pettigrew, Appellant,
v.
The State of Florida, Appellee. No. 3D09-276 District Court of Appeal of Florida, Third District. Opinion filed September 23, 2009.

An Appeal from the Circuit Court for Miami-Dade County, Orlando A. Prescott, Judge, Lower Tribunal No. 82-629.

Stanley Pettigrew, in proper person.

Bill McCollum, Attorney General, and Richard L. Polin, Assistant Attorney General, for appellee.

Before COPE and GERSTEN, JJ., and SCHWARTZ, Senior Judge.

Confession of Error

PER CURIAM.

This is an appeal of an order denying a motion to correct illegal sentence under Florida Rule of Criminal Procedure 3.800(a). We affirm in part and reverse in part.

Defendant-appellant Stanley Pettigrew was charged as a principal in the offense of attempted first-degree murder. The charging document alleged that the defendant “did act as a principal while another, who is to the Assistant State Attorney unknown shot SAMUEL MIZEARY with a firearm, to-wit: a PISTOL, in violation of 782.04 (1) and 777.04 (1) Florida Statutes . . . .”¹ Upon conviction on this count the defendant was sentence to a term of ninety-nine years.

The State acknowledges that under the applicable statutes, first-degree murder is a capital felony. § 782.041(1), Fla. Stat. (1981). An attempt reduces a capital felony to a first-degree felony. Id. § 777.04(4)(a). “Attempts to commit a capital felony are sentenced as first-degree felonies, which always carry a maximum sentence of thirty years absent a statutory provision authorizing life. There is no such authorizing statute for attempted first-degree murder . . . .” King v. State, 390 So. 2d 315, 320 (Fla. 1980).² We therefore reverse the order on this point and remand for reduction of the ninety-nine year sentence on this count to the legal maximum of thirty years. The defendant need not be present.

We affirm on the remaining issues without comment.

Affirmed in part, reversed in part, and remanded for further proceedings consistent herewith.

Not final until disposition of timely filed motion for rehearing.

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Notes:

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MARLON MIGUEL BROWN, Appellant,
v.
STATE OF FLORIDA, Appellee. No. 4D08-437. District Court of Appeal of Florida, Fourth District. September 23, 2009.

Appeal from the Circuit Court for the Nineteenth Judicial Circuit, Okeechobee County, Sherwood Bauer, Jr., Judge, L.T. Case No. 472006CF000584.

R. Lee Dorough of Dorough, Calzada & Hamner, P.L., Orlando, for appellant.

Bill McCollum, Attorney General, Tallahassee, and Laura Fisher Zibura, Assistant Attorney General, West Palm Beach, for appellee.

PER CURIAM.

Appellant Marlon Miguel Brown (“Brown”) timely appeals the trial court’s final judgment and sentence for first degree murder, false imprisonment, and carrying a concealed weapon. This court has jurisdiction. Fla. R. App. P. 9.140(b)(1)(A) (2008). For the reasons set forth below, we reverse.

Brown was charged by information with one count of second degree murder of Shanique Harris (“Harris”) with a firearm, which was later superseded by an indictment for first degree murder with a firearm, false imprisonment with a firearm, and carrying a concealed firearm. A jury trial was held, and Brown was found guilty on all counts. The trial court sentenced him to life imprisonment for the first degree murder, fifteen years for false imprisonment, and five years for carrying a concealed weapon. Brown moved for a new trial, arguing the impropriety of the State’s rebuttal in its closing statement. After hearing arguments from both sides, the court denied Brown’s motion.

On appeal, Brown raises several claims, but we find only his argument as to the State’s closing statement persuasive. Thus, we affirm as to the other claims without further discussion.

The alleged errors in the State’s closing argument were on rebuttal. After giving a brief initial closing statement, the State presented to the jury a much more extensive, thirty-four-slide PowerPoint presentation on rebuttal. That presentation also included a photograph, which was never introduced into evidence, and the name of a witness, who never testified at trial.

First, “[a] prosecutor must confine his or her closing argument to evidence in the record and must not make comments which could not be reasonably inferred from the evidence.” Hazelwood v. State, 658 So. 2d 1241, 1244 (Fla. 4th DCA 1995). This Court in Hazelwood found that a new trial was necessary where “the prosecutor suggested that [witnesses who did not testify] would corroborate the [S]tate’s case.” Id. Here, the photograph and the mention of a witness who never testified had the same prejudicial effect.

Further, we find problematic the general structure of the State’s closing argument. Heddendorf v. Joyce, 178 So. 2d 126 (Fla. 2d DCA 1965). In Heddendorf—a negligence action involving an automobile accident—plaintiff’s counsel “did not assess or suggest any specific sum for the damages claimed other than out-of-pocket expenses” during his initial closing statement. Id. at 128. After the defendant’s reply, however, plaintiff’s counsel, “for the first time in the trial, produced a chart outlining to the last cent his mathematical computation of each element of damage, totaling the sum of $61,035.96.” Id. The trial court denied the defendant’s request to reply to that rebuttal, and the Second District reversed the trial court. That decision was “founded upon the nature, function and purpose of closing argument,” which the Second District characterized as the following:

It thus appears that the concluding argument sustains an analogy to evidence in rebuttal. Its proper limit is a reply to what has been brought out in the defendant’s argument. As the plaintiff (or, in a criminal case, the State) is not allowed to establish its case in chief by evidence introduced for the first time in rebuttal, so the plaintiff’s counsel (or the State’s counsel) ought not to be allowed, in the concluding argument, to take new ground, to state new points of law, or to read new authorities in support of the positions which he has assumed.

Id. at 129-30.

In the case at hand, the State’s initial closing went only as far as to assert how the evidence did not support convictions for lesser included charges. On rebuttal, however, the State summarized, in a detailed PowerPoint presentation, the testimony of each witness, what was shown in the surveillance tape, and the elements of each crime for which Brown was charged. The proper limit of a rebuttal is “a reply to what has been brought out in the defendant’s [closing] argument.” 178 So. 2d at 130. The State’s rebuttal not only contained references to evidence that was never admitted at trial, but went beyond its function as a reply to Brown’s closing argument. This was improper.

Thus, we reverse the trial court’s denial of Brown’s motion and remand this case for a new trial.

POLEN and FARMER, JJ., concur.

GROSS, C.J., dissents with opinion.

GROSS, J., dissenting.

The majority has stretched case law to reverse in a situation where reversal is not justified.

The defendant shot his girlfriend with a handgun from close range. The strongest theory of the defense was that the defendant was guilty of manslaughter and not premeditated murder.

During the first part of his closing statement, the prosecutor argued for a verdict of first degree murder and discussed how the evidence did not support a finding of excusable homicide, manslaughter, or second degree murder. He argued that the evidence proved the three crimes charged— first degree murder, false imprisonment, and carrying a concealed weapon.

The defense closing focused on the evidence and strenuously argued that the defendant did not consciously reflect upon the shooting.

The state’s rebuttal focused on the many details in the evidence that pointed to premeditation.

This is a proper thematic structure for a closing argument. The prosecutor said the defendant was guilty, the defendant argued that he was guilty of a lesser charge, and the prosecutor rebutted by contending that the evidence supported the conclusion that the defendant was guilty of the most serious crime charged in the information.

This case is unlike Heddendorf v. Joyce, 178 So. 2d 126 (Fla. 2d DCA 1965), where the plaintiff did not discuss damages in his opening argument, leaving the precise mathematical computation of damages for rebuttal. In this circumstance, the defense was left without the ability to respond to the damages issue. Here, both sides had the chance to address the main issue in the case—whether there was sufficient premeditation to support the charge of first degree murder, or whether a lesser included offense was the more appropriate verdict. Although the prosecutor extensively went into the facts on rebuttal with his Power Point presentation, his argument did not “take new ground . . . state new points of law, or . . . read new authorities in support” of his case. Id. at 130 (quoting Thompson, Trials (2d ed. 1912)). As the trial judge recognized, the defense had the opportunity to “attack [ ] every angle” of the state’s case during its argument. The defense attorney had the “opportunity not only to advance the theories and reasoning which favor his client, but also to rebut the argument of plaintiff’s counsel.” Heddendorf, 178 So. at 129.

The majority bootstraps its misapplication of Heddendorf by stating that the prosecutor argued that witnesses who did not testify would corroborate the state’s case. This characterization overstates what happened. A witness who did not testify at trial was listed along with two testifying witnesses on a Power Point slide. After the defense objected, the trial judge instructed the jurors to rely upon the testimony presented in court. The other two witnesses listed on the slide gave detailed accounts of the shooting. The prosecutor did not argue that the non-testifying witness would have corroborated the state’s case.

Not final until disposition of timely filed motion for rehearing.

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STATE OF FLORIDA, Appellant,
v.
KATRINA BROOKS, Appellee. Case No. 2D08-4255. District Court of Appeal of Florida, Second District. Opinion filed September 23, 2009.

Appeal from the Circuit Court for Hillsborough County, William Fuente, Judge.

Bill McCollum, Attorney General, Tallahassee, and Ha Thu Dao, Assistant Attorney General, Tampa, for Appellant.

James Marion Moorman, Public Defender, and Richard J. Sanders, Assistant Public Defender, Bartow, for Appellee.

WHATLEY, Judge.

The State appeals the trial court’s order granting judgment of acquittal in favor of Katrina Brooks on the charge of child neglect. We reverse.

Brooks was charged with aggravated manslaughter of a child in count one and neglect of a child involving great bodily harm, permanent disability, or permanent disfigurement in count two based on the drowning death of her nine-month-old son. Brooks placed her son and her two-year-old daughter in the bathtub with the water running. She left the bathroom and went into the living room where her aunt was, intending to return within the minute. She did not normally leave the children alone in the bathtub because she knew of the potential for drowning. However, she and her aunt began talking and she lost track of time; she did not hear the water running or any noises from the children. She had not considered whether she could hear the children from the living room because she planned on returning to the bathroom immediately. Sometime between fifteen and forty minutes later, Brooks’ aunt got up to leave and Brooks walked toward the kitchen. She saw water just outside the bathroom doorway and ran into the bathroom, where she found her children in the overflowing tub. Her son was blue and face down in the water. She ran with him to a neighbor’s home next door to use the phone, trying to do CPR on the way, to no avail.

The jury found Brooks not guilty of the manslaughter charge of count one and guilty of the lesser-included offense of count two of neglect of a child in violation of section 827.03(3)(c), Florida Statutes (2007). The trial court denied Brooks’ motion for judgment of acquittal made during trial but granted her renewed motion filed after the jury rendered its verdict. See Fla. R. Crim. P. 3.380(c).

Section 827.03(3)(c) provides that it is a third-degree felony to willfully or by culpable negligence neglect a child. In its order acquitting Brooks of neglect of a child, the trial court ruled that the evidence did not establish that Brooks neglected her child in either manner.

In this appeal, the State argues that the trial court’s order is erroneous because substantial, competent evidence supported the jury’s verdict. See Jones v. State, 790 So. 2d 1194, 1197 (Fla. 1st DCA 2001) (“If the evidence is legally sufficient to support the elements of the alleged crime, the trial court has no discretion to acquit the defendant by taking the case from the jury.”). More specifically, the State asserts that the evidence supported a finding that Brooks was culpably negligent.

This court has defined culpable negligence as “consciously doing an act which a reasonable person would know is likely to result in death or great bodily harm to another person, even though done without any intent to injure anyone but with utter disregard for the safety of another.” Azima v. State, 480 So. 2d 184, 186 (Fla. 2d DCA 1985) (citing Tsavaris v. State, 414 So. 2d 1087, 1088 (Fla. 2d DCA 1982)). The degree of culpable negligence necessary to sustain a conviction was set forth State v. Greene, 348 So. 2d 3[, 4] (Fla. 1977):

This Court is committed to the rule that the degree of negligence required to sustain imprisonment should be at least as high as that required for the imposition of punitive damages in a civil action. The burden of proof authorizing a recovery of exemplary or punitive damages by a plaintiff for negligence must show a gross and flagrant character, evincing reckless disregard of human life or of the safety of persons exposed to its dangerous effects; or that entire want of care which would raise the presumption of indifference to consequences; or such wantonness or recklessness or grossly careless disregard of the safety and welfare of the public, or that reckless indifference to the rights of others, which is equivalent to an intentional violation of them.

Arnold v. State, 755 So. 2d 796, 798 (Fla. 2d DCA 2000); Leet v. State, 595 So. 2d 959, 964 n.3 (Fla. 2d DCA 1991) (“Culpable negligence is not a common law theory of criminal intent. It is an objective standard.”).

The trial court correctly identified the sufficiency of the evidence of culpable negligence to send the issue to the jury when it denied the motion for judgment of acquittal made during trial. After noting that it had come across Arnold in researching the issue, the court stated:

The most pertinent issue in the facts in this case are [sic] that the length of time certainly becomes — the length of time that the infant is left alone certainly becomes more important because of the tender age of this victim, that is nine months old. Being completely unable to fend for himself in any way, shape or form. And certainly the two-year-old could not be expected to do that.

So again, the question is[,] is her degree of negligence, quote, culpable negligence, quote, as a matter of law? And again, the most determinative factor in my answering this question is the age of that particular — of the young child that died.

At his juncture, I’m going to respectfully deny the motion for JOA because whether her degree of negligence rises to culpable negligence I think is first a question of fact for this jury to determine.

Because the evidence was legally adequate to support the charge of child neglect by culpable negligence, the trial court erred in granting Brooks’ motion for judgment of acquittal. Accordingly, we reverse and remand with directions that Brooks’ conviction for child neglect be reinstated.

Reversed and remanded with directions.

ALTENBERND and VILLANTI, JJ., Concur.

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED.

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THOMAS MITTASCH, Appellant,
v.
STATE OF FLORIDA, Appellee. No. 4D08-4194. District Court of Appeal of Florida, Fourth District. September 23, 2009.

Appeal of order denying rule 3.850 motion from the Circuit Court for the Seventeenth Judicial Circuit, Broward County, Martin J. Bidwill, Judge, L.T. Case No. 05-16744-CF-10.

Thomas Mittasch, Pompano Beach, pro se.

Bill McCollum, Attorney General, Tallahassee, and August A. Bonavita, Assistant Attorney General, West Palm Beach, for appellee.

PER CURIAM.

This is an appeal from an order denying appellant’s motion for postconviction relief. Appellant raised nine grounds for relief. We reverse on one ground and affirm the trial court’s decision as to the other eight. Appellant was convicted of a burglary at a motel room. Ground one of his motion contends that his trial counsel rendered ineffective assistance of counsel for failing to call witnesses who would have supported the position that he had permission to be in the room. We find appellant’s motion to be facially sufficient. Ford v. State, 825 So. 2d 358, 360 (Fla. 2002) (quoting Jackson v. State, 711 So. 2d 1371, 1372 (Fla. 4th DCA 1998)). Consequently, we remand to the trial court to attach portions of the record to refute the claim or to conduct an evidentiary hearing.

Affirmed in part, reversed in part, and remanded.

GROSS, C.J., POLEN and DAMOORGIAN, JJ., concur.

Not final until disposition of timely filed motion for rehearing.

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Jeffrey Alan Weekley, Appellant,
v.
The State of Florida, Appellee. No. 3D08-2012. District Court of Appeal of Florida, Third District. Opinion filed September 23, 2009.

An Appeal from the Circuit Court for Miami-Dade County, Peter Adrien, Judge, Lower Tribunal No. 87-32288.

Jeffrey Alan Weekley, in proper person.

Bill McCollum, Attorney General, and Ansley B. Peacock, Assistant Attorney General, for appellee.

Before WELLS and SHEPHERD, JJ., and SCHWARTZ, Senior Judge.

PER CURIAM.

Affirmed.

WELLS, J., and SCHWARTZ, Senior Judge, concur.

Not final until disposition of timely filed motion for rehearing.

SHEPHERD, J., dissenting.

On this appeal, Defendant, Jeffrey Alan Weekley, contends the trial court erred by prematurely entering an order prohibiting Defendant from filing future pro se motions without considering his response to a show cause order.

The record reflects, and the State concedes, the trial court did not have a copy of Defendant’s response to its order to show cause when it issued an order prohibiting Defendant from filing future pro se motions. The trial court issued the show cause order May 21, 2008. The clerk of the trial court did not mail a copy of the order to Defendant until June 17. On July 1, Defendant mailed a motion for rehearing and response to the show cause order to the trial court. A review of the docket reflects the clerk docketed Defendant’s motion for rehearing July 10, but did not docket the response. One day prior, on July 9, the trial court entered an order prohibiting Defendant from filing any further pro se motions.

I would vacate the July 9 order so the trial court can consider Defendant’s Response to Order to Show Cause.

I express no opinion on the merits of the matter.

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Leonard Taylor, Appellant,
v.
The State of Florida, Appellee. No. 3D08-1379. District Court of Appeal of Florida, Third District. Opinion filed September 23, 2009.

An Appeal under Florida Rule of Appellate Procedure 9.141(b)(2) from the Circuit Court for Miami-Dade County, Peter Adrien, Judge, Lower Tribunal No. 01-20470.

Leonard Taylor, in proper person.

Bill McCollum, Attorney General, and Douglas J. Glaid, Senior Assistant Attorney General, for appellee.

Before GERSTEN and CORTIÑAS, JJ., and SCHWARTZ, Senior Judge.

PER CURIAM.

Leonard Taylor (“the defendant”) appeals an order summarily denying his motion for postconviction relief under Florida Rule of Criminal Procedure 3.850. We affirm in part and reverse in part.

The defendant filed a rule 3.850 motion containing several claims of alleged error. Claims 4, 6, 8, 11 and 12 of the defendant’s rule 3.850 motion raised ineffective assistance of trial counsel. These claims are properly the subject of a postconviction relief motion. See McKinney v. State, 579 So. 2d 80 (Fla. 1991). The State has conceded, and we agree, that as to these claims we must reverse unless the record conclusively shows that the defendant is entitled to no relief. See Fla. R. App. P. 9.141(b)(2)(D).

Because the record now before us fails to make the required showing, we reverse and remand for attachment of record excerpts conclusively showing that the defendant is not entitled to any relief or for an evidentiary hearing. If the trial court again enters an order summarily denying the postconviction motion, the court shall attach record excerpts conclusively showing that the appellant is not entitled to any relief.

As to the remaining claims, they were or should have been previously raised in the defendant’s appeal from the judgment of conviction, which this Court affirmed. See Harvey v. Dugger, 656 So. 2d 1253 (Fla. 1995); Taylor v. State, 925 So. 2d 1035 (Fla. 3d DCA 2006).

Accordingly, we reverse and remand the order appealed from for further proceedings on claims 4, 6, 8, 11 and 12, and affirm as to all other claims.

Affirmed in part and reversed in part.

Not final until disposition of timely filed motion for rehearing.

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TYRONE JAMES TERRY, Appellant,
v.
STATE OF FLORIDA, Appellee. Case No. 2D07-4813. District Court of Appeal of Florida, Second District. Opinion filed September 23, 2009.

Appeal from the Circuit Court for Pinellas County, Richard A. Luce. Judge.

James Marion Moorman, Public Defender, and Judith Ellis, Assistant Public Defender, Bartow, for Appellant.

Tyrone J. Terry, pro se.

Bill McCollum, Attorney General, Tallahassee, and Sara Macks, Assistant Attorney General, Tampa, for Appellee.

FULMER, Judge.

Tyrone J. Terry appeals his resentencing on count two (simple robbery) of a judgment. In 1996, Terry was sentenced as a habitual offender to twenty years in prison on count two. After serving one year in jail, the remaining nineteen years were suspended and Terry was to serve ten years on probation. He violated his probation and was sentenced on count two to a nonhabitual sentence of nineteen years in prison. He then filed a successful motion to correct illegal sentence pursuant to Florida Rule of Criminal Procedure 3.800(a), alleging that the nineteen-year sentence imposed on count two was illegal because it exceeded the statutory maximum sentence for a second-degree felony. The trial court resentenced Terry on count two in 2007 to fifteen years, stating “15 years . . . [n]ot as a habitual. It’s the guidelines, count two.”¹

On appeal, counsel for Terry filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967). Terry filed a pro se brief raising several claims, most of which are without merit. However, after considering additional briefing pursuant to Penson v. Ohio, 488 U.S. 75 (1988), we conclude that Terry is entitled to a new sentencing hearing on count two using a corrected scoresheet.

First, Terry claims that the points for legal restraint—which were not on the original 1996 scoresheet—were improper. He cites Martinez v. State, 770 So. 2d 211 (Fla. 4th DCA 2000), which holds that legal constraint points may only be included on a sentencing scoresheet at the violation of supervision stage if the defendant was under legal constraint at the time of the offense, not at the time of the violation.

The record reflects that Terry was resentenced to a guidelines sentence in 2007 and that the most recent guidelines scoresheet was prepared for use at Terry’s violation of probation sentencing. That applicable scoresheet shows that seventeen points for legal constraint were added to that scoresheet after the date of his original sentencing in 1996, and according to Martinez, those points were only appropriate if Terry was under legal constraint at the time of the offense.

Terry also contends that he was never convicted of aggravated assault, which is a conviction listed under prior record on the most recent scoresheet.

Terry properly preserved these scoresheet issues by raising them in a motion to correct sentencing error pursuant to Florida Rule of Criminal Procedure 3.800(b)(2). See Jackson v. State, 983 So. 2d 562, 572 (Fla. 2008).

Accordingly, we reverse and remand for a new sentencing hearing with a corrected scoresheet.

Reversed and remanded.

WHATLEY, J., and DAKAN, STEPHEN L., ASSOCIATE SENIOR JUDGE, Concur.

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED.

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Notes:

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The State of Florida, Appellant,
v.
Juan Armenteros, Appellee. No. 3D07-2855. Consolidated: 3D07-2849. District Court of Appeal of Florida, Third District. Opinion filed September 23, 2009.

An Appeal from the Circuit Court for Miami-Dade County, Spencer Eig, Judge, Lower Tribunal Nos. 07-11627; 07-11728.

Bill McCollum, Attorney General, and Natalia Costea, Assistant Attorney General, for appellant.

Juan Armenteros, in proper person.

Before RAMIREZ, C.J., and GERSTEN and CORTIÑAS, JJ.

CORTIÑAS, J.

As State v. Roberts, 963 So. 2d 747 (Fla. 3d DCA 2007), State v. Green, 932 So. 2d 365 (Fla. 3d DCA 2006), State v. Brownell, 922 So. 2d 244 (Fla. 3d DCA 2006), and State v. Mendez, 835 So. 2d 375 (Fla. 3d DCA 2003), we reverse the downward departure sentence entered pursuant to a court-initiated agreement with the defendant, in which the State did not participate, as it was unaccompanied by oral or written reasons justifying the departure. See State v. Barr, 947 So. 2d 1277 (Fla. 3d DCA 2007); State v. Ahua, 947 So. 2d 637 (Fla. 3d DCA 2007); State v. Perez, 802 So. 2d 1167 (Fla. 3d DCA 2001), review denied, 823 So. 2d 125 (Fla. 2002); State v. Paulk, 813 So. 2d 152 (Fla. 3d DCA 2002), review denied, 832 So. 2d 105 (Fla. 2002).

The sentence is therefore reversed with directions to enter sentence within the guidelines or to permit the defendant to withdraw his plea.

Reversed and remanded.

Not final until disposition of timely filed motion for rehearing.

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