
    Larry Ray SMITH, Appellant, v. STATE of Florida, Appellee.
    No. 89-803.
    District Court of Appeal of Florida, Fifth District.
    April 19, 1990.
    
      James B. Gibson, Public Defender, and Michael S. Becker, Asst. Public Defender, Daytona Beach, for appellant.
    Robert A. Butterworth, Atty. Gen., Tallahassee, and Colin Campbell, Asst. Atty. Gen., Daytona Beach, for appellee.
   DANIEL, Chief Judge.

The defendant appeals from the entry of two separate judgments and one sentence arising from a DUI incident occurring on February 22, 1987. He and the state agree that the latter judgment and sentence must be declared a nullity and set aside as violating the constitutional prohibition against double jeopardy. Defendant also contends that the cause should be remanded for sentencing pursuant to the first judgment entered in accordance with the terms of his plea tendered on September 26, 1988. The state responds that an incorrect sentencing scoresheet was utilized when the judge accepted the defendant’s plea and that the trial court should not be forced to comply and give defendant an improper departure sentence. On this point we remand for further proceedings to determine the terms of the plea agreement.

Following an automobile accident in February 1987, the defendant was charged, in a three count information, with DUI manslaughter, DUI causing serious bodily injury to another, and DUI causing damage to the property of another. In September 1987, the state and defendant jointly consented to, and the court ordered, a pre-plea presentence investigation. One year later, in September 1988, the defendant through counsel, tendered a plea of nolo conten-dere to all charges based on his understanding that the trial court would accept the pleas, adjudicate the defendant to be guilty of each charge, and sentence the defendant to three years incarceration to be followed by a consecutive three-year probationary term. The tendered plea also was based on an understanding that the court would consider early termination of the probationary term when and if the defendant paid the victim $2,916.25 restitution. The tendered plea was in writing, signed by the defendant but not by the state. The trial court accepted the plea, adjudicated the defendant guilty as charged, and set sentencing for November 15, 1988, noting:

THE COURT: At which time you will be before the court, you will be sentenced as indicated by your attorney, and the probationary period will be terminated successfully after payment of $2,916.25.

At the outset of the above-mentioned plea hearing, the assistant state attorney announced that under the sentencing guidelines, as reflected in the pre-plea sentence investigation, defendant’s recommended sentence was three to seven years incarceration and further recommended that the defendant be sentenced to five years incarceration and ordered to pay restitution. After the court accepted the plea, the court deferred formal sentencing at the request of the assistant state attorney, who had wanted to present the victim’s testimony to have a harsher sentence imposed on the defendant. A written judgment was filed on September 26, 1988.

On the scheduled sentencing date the state claimed that it had objected to the entry of the plea at the time it was submitted and to the proposed sentence. The state also claimed the scoresheet to be incorrect. The trial judge deferred sentencing pending receipt of memoranda of law ordered by him to be filed by the state and the defendant. In January 1989, the trial court ordered probation and parole officials to provide the court with information regarding the alleged prior DUI convictions of defendant. On February 27, 1989, the state inexplicably filed an amended information charging the same offenses as in the original information with the exception that count II thereof was amended to delete the word “serious” before bodily injury, thereby reducing that charge from a felony to a misdemeanor. The defendant stood silent at the arraignment on the amended information resulting in the trial court entering a not guilty plea on his behalf. The matter proceeded to jury trial whereupon the defendant was found guilty on all three charges. The trial court thereafter adjudicated the defendant guilty of the three charges and subsequently sentenced him to an aggregate sentence of seventeen years incarceration. This sentence was based on a guidelines scoresheet that included prior DUI convictions from Ohio, to which the defendant objected as being unverified.

Both the defendant and state agree that the existence of the first judgment renders the second judgment a nullity as violating the constitutional prohibition against double jeopardy. U.S. Const. Amend. V and XIV; Art. I, § 9, Fla. Const. Jeopardy attached when the trial court accepted the defendant’s nolo contendere plea in accordance with Florida Rule of Criminal Procedure 3.172(f). State ex rel. Wilhoit v. Wells, 356 So.2d 817, 823 (Fla. 1st DCA); cert. denied, 359 So.2d 1222 (1978). It naturally follows that the sentence arising from the latter, void judgment is also invalid.

Upon remand the trial court should determine the conditions of the original plea in regard to sentencing. If the original terms cannot be followed because it would constitute an improper sentence, then the trial court should offer the defendant the opportunity to withdraw his plea or be allowed to proceed with the plea without the trial court being bound by any agreement, or conditions. Cf. Gamble v. State, 449 So.2d 319, 322 (Fla. 5th DCA 1984); Wilhoit, 356 So.2d at 824.

Because it appears that the defendant, through the accumulation of gain time, may soon serve the sentence to which he originally agreed, the trial court is directed to determine the issues discussed herein and properly sentence the defendant with all deliberate speed.

Finally, we note that count II of the judgment dated September 26, 1988, should be reduced from a third degree felony to a first degree misdemeanor. The state admitted that the evidence failed to show that the victim suffered “serious” bodily injury. Cf. Krantz v. State, 553 So.2d 746 (Fla. 5th DCA 1989). This will no doubt further affect defendant’s scoresheet and, possibly, his sentence.

Judgment and sentence dated April 12, 1989, VACATED; REMANDED for further proceedings.

GOSHORN, J., concurs.

HARRIS, J., dissents with opinion.

HARRIS, Judge,

dissenting.

I respectfully dissent. It appears to me that the issue is not whether there is a formal order in the file permitting the defendant to withdraw his plea, but whether, in fact, the defendant elected to go to trial rather than be sentenced under the appropriate guidelines. And we must find the answer to that question from the record.

Appellant concedes he entered a plea agreement with the court to plead no contest to all three counts as charged (two felonies and one misdemeanor) and that he would receive three years in prison followed by three years probation. Even though the state was under the impression, based on the pre-plea scoresheet prepared by the probation department, that the guideline range was 3 to 7 years, it is agreed that the state opposed the negotiated sentence of three years and would not execute the agreement. Over the objections of the state, the court accepted its plea agreement with the defendant and adjudicated him guilty. The court deferred sentence until a later date at the request of the state.

At the scheduled sentencing hearing the state argued:

Your Honor, in this ease it’s quite clear that this [agreed three-year sentence] would be an improper sentence, and the State would have the obligation to appeal the sentence if the Court were to impose it, because it would be below the guideline sentence.
And I think the situation is such that Mr. Smith should be given the opportunity to withdraw his plea. ... he has not been sentenced yet — and urge the court not to sentence the Defendant, and allow him to withdraw his plea or to set aside the plea based on the State’s objection and schedule this matter either for trial or pretrial.

Although Appellant’s counsel objected to the court’s not honoring the three-year plea even if an illegal sentence, the court deferred ruling until the parties could submit memoranda.

At the next recorded hearing the following transpired:

Your Honor, we had a hearing in chambers on this yesterday. Probation and Parole was to provide information in regard to the prior DUI conviction. We were awaiting hearing from them.
MR. FANTER [Appellant’s trial attorney]: Mr. Smith was here this morning. I advised him of the court’s ruling and setting it for the trial docket in February pending outcome of their investigation.
THE COURT: Let’s set it for the trial docket in February pending the investigation report -received from Probation and Parole. As soon as that’s received, if the State would see that we get back before the Court in an appropriate manner to resolve it or to finalize plans for trial.

The matter came on for trial on February 27, 1989. Since the court permitted the case to go to trial, it must be presumed that he set aside the previous plea agreement. And based on the existing law, he had no choice.

A trial court is not free to offer a plea bargain which is below the sentencing guidelines, over the State’s objections, unless it provides clear and convincing reasons for the departure. See State v. Lewis, 540 So.2d 927 (Fla. 3rd DCA 1989). Although principles of estoppel may be applied in carrying out the terms of a plea bargain, here estoppel has no application. The state offered no plea to the defendant and was not a party to the plea bargain offered by the court. State v. Singletary, 547 So.2d 1262 (Fla. 3rd DCA 1989).

We should not permit the defendant to rely on an illegal sentence negotiated with the trial court. The alternative to imposing an illegal sentence is to sentence the defendant to a term within the appropriate guideline or, if he chooses, to permit the defendant to withdraw his plea and go to trial on the original charges. State v. Williams, 549 So.2d 230 (Fla. 3rd DCA 1989). State v. Richardson, 536 So.2d 1193 (Fla. 4th DCA 1989). The majority agrees that on remand this is what the trial court should do; I believe the record adequately reflects that appellant was given this option prior to trial.

The record reflects that defendant made no objection to proceeding to trial except to challenge the timeliness of the amended information. It also shows that defense counsel attempted to negotiate a new agreement with the court at the start of the trial. This is not to suggest that by not objecting to the new trial the defendant waives his claim based on double jeopardy. See Johnson v. State, 483 So.2d 420 (Fla.1986). Clearly this opinion considers such claim. But the record does reflect that the court announced its intention not to proceed with the three-year sentence and although defendant could have elected to proceed to sentence within the appropriate guideline range, by standing mute he elected to go to trial on the original charges (as amended) and take his chance on the jury. I do not believe he should receive yet another chance.

I would affirm. 
      
      . U.S. Const. Amend. V and XIV; Art. I, § 9, Fla. Const.
     
      
      . The original trial judge retired at the end of December 1988, and all proceedings thereafter were conducted by his successor in office.
     
      
      . At trial, the state candidly admitted the victim’s injuries were not of a nature to warrant the more serious offense.
     
      
      . See State v. Bateh, 110 So.2d 7 (Fla.1958), cert. denied, 361 U.S. 826, 80 S.Ct. 74, 4 L.Ed.2d 69 (1959) (“When a trial court has delayed the sentence, the power to sentence must be exercised before the lapse of the extreme period for which sentence could have been imposed, and when it is inflicted the term cannot be projected beyond the extreme period."); State v. Sweetman, 302 So.2d 164, 165 (Fla. 4th DCA 1974); Fla.R.Crim.P. 3.720.
     
      
      . We do not reach the scoring of defendant’s out-of-state DUI convictions because that issue is not presently before the court. We note, however, that where a defendant disputes the degree and number of convictions in a score-sheet, the state must produce adequate corroborative evidence or strike the disputed conviction(s) from the scoresheet. Blanton v. State, 546 So.2d 1181 (Fla. 5th DCA 1989); Vandeneynden v. State, 478 So.2d 429 (Fla. 5th DCA 1985).
     
      
      . If we accept the scoresheet in the record, the guideline range is 12 to 17 years. Although Appellant contends that the Ohio convictions were not proved, he has failed to establish this by the record.
      Following the trial, the following discussion took place;
      THE COURT: You’re objecting to factoring in the other DUI until there's proof of it.
      MR. FANTER: Yeah.
      THE COURT: I’m sure the State doesn’t want to sentence him until we have that DUI information. It’s incumbent upon the State to get that information, so when the State gets that information, I’ll have sentencing ...
      The sentencing hearing is not a part of the record, so we don’t know what evidence was presented concerning the Ohio convictions, but even if we eliminate the Ohio convictions, the plea to two felonies and one misdemeanor with his admitted record would put appellant in the 7 to 12 year guidelines range. This would make the agreed three-year sentence "illegal”.
     
      
      . The transcript of this hearing is not a part of the record.
     