TIMMY RAY MCCUISTON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
Sentencing as a habitual felony offender constitutes a clear and convincing reason for departing from the sentencing guidelines, but the sentence is still imposed under the guidelines statute, precluding parole consideration.
Appellant was sentenced as a habitual felony offender for a robbery committed after the effective date of the sentencing guidelines. He argued that th…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Florida Rule Of Criminal Procedure 3.701 cases and more on FLexlaw
GRIMES, Acting Chief Judge.
Appellant was convicted of robbery without a weapon, a second degree felony. He was sentenced to thirty years as an habitual felony offender under section 775.084, Florida Statutes (1983). Among other things, he contends that the court failed to make the proper factual findings to support the habitual felony offender sentence and that in any event he should have been sentenced within the limits of the sentencing guidelines.
We find that the court’s specific reference to two prior Michigan armed robbery convictions and a subsequent escape conviction constituted a sufficient predicate for the determination that appellant was a danger to the community and that it was necessary for the protection of the public to declare him an habitual felony offender. The same reasoning provided a clear and convincing basis for departure from the presumptive sentence under the guidelines. Prior convictions can be used to justify a departure from the guidelines even though they have already been taken into account in computing a defendant’s presumptive sentence. Davis v. State, 458 So. 2d 42 (Fla. 4th DCA 1984); Hendrix v. State, 455 So. 2d 449 (Fla. 5th DCA 1984), 9 F.L.W. 1697. See also Kiser v. State, 455 So. 2d 1071 (Fla. 1st DCA 1984).
AFFIRMED.
OTT and DANAHY, JJ., concur.
PER CURIAM.
Appellant argues that our determination that his sentence as an habitual felony offender sufficed to justify a departure from the sentencing guidelines conflicts with this court’s recent decision in Brady v. State, 457 So. 2d 544 (Fla. 2d DCA 1984). By noting in Brady that the habitual felony offender statute was a viable alternative to the sentencing guidelines, we did not intend to infer that an enhanced sentence imposed under that statute was outside the provisions of section 921.001, Florida Statutes (1983), and Florida Rule of Criminal Procedure 3.701. We pointed out that the courts may utilize section 775.084 “provided they comply with its requirements and adequately state the reasons for departing from the guidelines.” We held that sentencing as an habitual offender constituted a clear and convincing reason for departing from the guidelines. Accord Smith v. State, 461 So. 2d 995 (Fla. 5th DCA 1984).
Appellant seeks to have this court say that he will be entitled to parole consideration on the theory that, having been sentenced as an habitual felony offender, section 921.001 is totally inapplicable to his sentence. Yet, section 921.001 provides that it is applicable to all felonies, except capital felonies committed after October 1, 1983, and the felony for which appellant is being sentenced took place on October 21, 1983. To accept appellant’s position would produce the anomaly that those career criminals who had been designated habitual felony offenders could obtain parole while others could not.
The maximum sentence for appellant’s crime of robbery without a weapon was fifteen years. The effect of determining appellant to be an habitual felony offender was to increase the statutory upper limit upon his sentence to thirty years. Appellant’s presumptive sentence under the guidelines was within the range of twelve to seventeen years. The fact that he was properly declared to be an habitual felony offender served as a clear and convincing reason for departing from the guidelines. Yet, appellant’s sentence was still imposed under section 921.001. Therefore, he will not be entitled to parole consideration. But see Dorman v. State, 457 So. 2d 503 (Fla. 1st DCA 1984) (defendant sentenced as mentally disordered sex offender eligible for parole consideration).
The motion for rehearing is denied.
GRIMES, A.C.J., and OTT and DAN-AHY, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
McCUISTON v. State, 507 So. 2d 1185 (Fla. 2d DCA 1987)…(Fla.1980). On McCuiston’s appeal this court decided that there was a valid factual basis for McCuiston’s habitual offender sentence, and that this was a clear and convincing reason for departing from the sentencing guidelines. McCuiston v. State, 462 So. 2d 830 (Fla. 2d DCA 1985). At that time, habitual felony offender status was a valid reason for departing from the sentencing guidelines. Not until Whitehead did the Florida Supreme Court decide that it was not a valid reason for departure. 498 So. 2d at 8…
-
Pope v. State, 475 So. 2d 1021 (Fla. 2d DCA 1985)…(1983). We agree. See Walker v. State, 462 So. 2d 452 (Fla.1985); Brown v. State, 457 So. 2d 1079 (Fla. 5th DCA 1984). We find no merit in defendant’s remaining contention. See Rasul v. State, 465 So. 2d 535 (Fla. 2d DCA 1985); McCuiston v. State, 462 So. 2d 830 (Fla. 2d DCA 1985). Reversed and remanded for resentenc-ing. GRIMES, A.C.J., and FRANK, J., concur.…
-
Fleming v. State, 480 So. 2d 715 (Fla. 2d DCA 1986)…cating that an enhanced sentence is necessary to protect the public may in certain circumstances, not present in this proceeding, disclose facts which constitute clear and convincing reasons for departing from the guidelines. Cf. McCuiston v. State, 462 So. 2d 830 (Fla. 2d DCA 1985); Brady v. State, 457 So. 2d 544 (Fla. 2d DCA 1984). Here, however, the trial court’s mere reliance upon the observation that Fleming would continue to be a threat to society does not meet the statutory standard and, hence, cannot…
Previewing 3 of 10 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Davis v. State, 458 So. 2d 42 (Fla. 4th DCA 1984)
- Hendrix v. State, 455 So. 2d 449 (Fla. 5th DCA 1984)
- Brady v. State, 457 So. 2d 544 (Fla. 2d DCA 1984)
- Kiser v. State, 455 So. 2d 1071 (Fla. 1st DCA 1984)
- Dorman v. State, 457 So. 2d 503 (Fla. 1st DCA 1984)
- Brooks v. State, 461 So. 2d 995 (Fla. 1st DCA 1984)
- Kurtis Smith v. State, 461 So. 2d 995 (Fla. 5th DCA 1984)