RICHARD LYNN BRADY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Brady appealed his three-year sentence imposed under Florida's habitual felony offender statute, arguing the court erred in exceeding sentencing guidelines recommendations. The Second District Court of Appeal affirmed, holding that the habitual felony offender statute is a viable alternative to sentencing guidelines and that the trial judge's oral statement of reasons for departing from the guidelines was sufficient.
The court held that the habitual felony offender statute is a viable alternative to the sentencing guidelines, and courts may utilize it provided they comply with its requirements and adequately state reasons for departing from the guidelines. Oral statement of reasons for departure is sufficient, though written reasons are encouraged.
[1] The habitual felony offender statute is a viable alternative to the sentencing guidelines.
[2] Courts may utilize the habitual felony offender statute provided they comply with its requirements and adequately state the reasons for departing from the sentencing guid…
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Join FLexlaw to unlock all legal intelligence“We hold that the habitual felony offender statute is a viable alternative to the sentencing guidelines.”
Establishes the central holding that statutory alternatives to guidelines are permissible
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Join FLexlaw to unlock all legal intelligenceBrady was sentenced to three years under section 775.084, Florida Statutes, the habitual felony offender statute. The sentencing court found that sent…
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OTT, Judge.
Brady appeals his three-year sentence under section 775.084, Florida Statutes (1983), the habitual felony offender statute. He argues that the court erred in exceeding the sentence recommended by the sentencing guidelines, rules 3.701 and 3.988, Florida Rules of Criminal Procedure. We affirm.
Brady’s sentence was within the range set forth in section 775.084. We hold that the habitual felony offender statute is a viable alternative to the sentencing guidelines. The Committee Note to rule 3.701(d)(ll) in existence when Brady was sentenced, while not specifically referring to the habitual offender statute, recognized other alternatives to the guidelines.1 See also Massaro v. State, 449 So. 2d 1010 (Fla. 2d DCA 1984); Sweat v. State, 454 So. 2d 749 (Fla. 1st DCA 1984). The supreme court recently eliminated this note. See The Florida Bar: Amendment to Rules of Criminal Procedure (3.701, 3.988—Sentencing Guidelines), 451 So. 2d 824 (Fla.1984). However, the court acknowledged the existence of statutory alternatives to. the guidelines. Id., at 824 n. 12. Unless and until the Legislature repeals section 775.084, we conclude that courts may utilize it provided they comply with its requirements and adequately state the reasons for departing from the guidelines. In the case sub judice, the judge complied with the habitual offender statute by finding that sentencing as an habitual offender was necessary to protect the public. This is a clear and convincing reason for departing from the guidelines.
In our case, no written reasons for departure from the guidelines appear in the record. However, the trial judge clearly stated the reasons in the record. This is sufficient. See Smith v. State, 454 So. 2d 90 (Fla. 2d DCA 1984); Harvey v. State, 450 So. 2d 926 (Fla. 4th DCA 1984). We do, however, caution and encourage judges to record in writing their reasons for departing from the guidelines.
AFFIRMED.
SCHOONOVER and LEHAN, JJ., concur. . The relevant portion of Committee Note to 3.701(d)(ll) provided:
Sentences under provisions of the Youthful Offender Act (ch. 958), the Mentally Disordered Sex Offender Act (ch. 917), or which require participation in drug rehabilitation programs (s. 397.12) need not conform to the guidelines.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (27 total)
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State v. Jackson, 478 So. 2d 1054 (Fla. 1985)…roperly set forth written reasons for departing from the sentencing guidelines and remanded to the trial judge with directions to apply the guidelines in effect on the date of the original sentencing proceeding. We find conflict with Brady v. State, 457 So. 2d 544 (Fla. 2d DCA 1984), and Burke v. State, 456 So. 2d 1245 (Fla. 5th DCA 1984).1 We approve that part of the district court’s decision directing a written order expressing reasons for departure, but we quash that part of the decision directing the tria…
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Boynton v. State, 473 So. 2d 703 (Fla. 4th DCA 1985)…State, 450 So. 2d 926 (Fla. 4th DCA 1984), held that dictation into the record of clear and convincing reasons satisfies the rule. The fifth district in Burke v. State, 456 So. 2d 1245 (Fla. 5th DCA 1984), and the second district in Brady v. State, 457 So. 2d 544 (Fla. 2d DCA 1984), and Klapp v. State, 456 So. 2d 970 (Fla. 2d DCA 1984), have followed Harvey v. State. The first district, however, in Roux v. State, 455 So. 2d 495 (Fla. 1st DCA 1984), and in Jackson v. State, 454 So. 2d 691 (Fla. 1st DCA 1984),…
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Mischler v. State, 458 So. 2d 37 (Fla. 4th DCA 1984)…t DCA 1984). Non-rehabilitative career criminals warrant departure Young v. State, 455 So. 2d 551 (Fla. 1st DCA 1984); [*41] Kiser v. State, 455 So. 2d 1071 (Fla. 1st DCA 1984); Higgs v. State, 455 So. 2d 451 (Fla. 5th DCA 1984); Brady v. State, 457 So. 2d 544 (Fla. 2d DCA 1984); Smith v. State, 454 So. 2d 90 (Fla. 2d DCA 1984); Burke v. State, 456 So. 2d 1245 (Fla. 5th DCA 1984); Jean v. State, 455 So. 2d 1083 (Fla. 2d DCA 1984); Swain v. State, 455 So. 2d 533 (Fla. 1st DCA 1984); Fleming v. State,…1 / 2
Previewing 3 of 27 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- THE Fla. BAR: Amendment to Rules of Crim. Procedure (3.701, 451 So. 2d 824 (Fla. 1984)
- Smith v. State, 454 So. 2d 90 (Fla. 2d DCA 1984)
- Harvey v. State, 450 So. 2d 926 (Fla. 4th DCA 1984)
- Sweat v. State, 454 So. 2d 749 (Fla. 1st DCA 1984)
- Massaro v. State, 449 So. 2d 1010 (Fla. 2d DCA 1984)