NATAL RASUL, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Defendant Rasul appeals his conviction and sentencing for retail grand theft. The court affirms his conviction but reverses his sentencing, finding that the trial court improperly imposed a habitual felony offender sentence without first considering the applicable sentencing guidelines scoresheet and presumptive sentence.
A trial court cannot properly sentence a defendant under the habitual felony offender statute without first considering the applicable sentencing guidelines and the presumptive sentence. While sentencing as a habitual offender constitutes a clear and convincing reason to depart from the guidelines, the trial court must first be aware of the presumptive guideline sentence to make an informed departure decision.
[1] Sentencing under the habitual felony offender statute requires consideration of the sentencing guidelines.
[2] A trial court cannot depart from the sentencing guidelines without first considering the presumptive guidelines sentence.
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Join FLexlaw to unlock all legal intelligence“sentencing as an habitual offender constituted a clear and convincing reason for departing from the guidelines”
Clarifies that habitual offender sentencing is a valid basis for guideline departure, but does not eliminate the guideline framework entirely
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Join FLexlaw to unlock all legal intelligenceRasul was convicted of retail grand theft. The trial court sentenced him under the habitual felony offender statute (section 775.084, Florida Statutes…
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LEHAN, Judge.
Defendant appeals from his conviction and sentencing for retail grand theft. He raises two points on appeal which we conclude are without merit. See Emshwiller v. State, 443 So. 2d 343 (Fla. 2d DCA 1983), aff’d, 462 So. 2d 457 (Fla.1985); Castle v. State, 305 So. 2d 794 (Fla. 4th DCA 1975), aff’d, 330 So. 2d 10 (Fla.1976).
We conclude that there is merit in his third point which is the contention that the trial court erred in sentencing defendant under the habitual felony offender statute, section 775.084, Florida Statutes (1983), without having had the benefit of a sentencing guidelines scoresheet. The state cites Brady v. State, 457 So. 2d 544 (Fla. 2d DCA 1984) in opposition. The state argues that under Brady sentencing pursuant to the habitual felony offender statute occurs without reference to the sentencing guidelines. We disagree. As this court explained in McCuiston v. State, 462 So. 2d 830 (Fla. 2d DCA 1985) (on motion for rehearing) in Brady, we did not intend to say that the guidelines were not applicable when a defendant met the requirements of the habitual felony offender statute, notwithstanding Brady’s reference to such sentencing as an alternative to the sentencing guidelines. McCuiston points out that Brady actually holds that “sentencing as an habitual offender constituted a clear and convincing reason for departing from the guidelines.” McCuiston, at 831. See also Davis v. State, 462 So. 2d 65 (Fla. 2d DCA 1985). Accord Smith v. State, 461 So. 2d 995 (Fla. 5th DCA 1984).
We have previously held that there cannot be a proper departure from the sentencing guidelines without the trial court having first considered the presumptive guidelines sentence. Doby v. State, 461 So. 2d 1360 (Fla. 2d DCA 1984); Myrick v. State, 461 So. 2d 1359 (Fla. 2d DCA 1984). Compare Davis v. State, 462 So. 2d 65 supra (sentencing guidelines were properly considered when the trial court had been informed of the presumptive sentence even though no guidelines scoresheet was in the record).
In the case at hand the sentencing guidelines were applicable, but no guidelines scoresheet was prepared and the record does not show that the trial court was aware of the presumptive sentence under the guidelines. Consistent with Myrick and Doby and for the reasons stated in our opinions in those cases, we conclude that the trial court erred. “[N]ot knowing the presumptive sentence, the trial court was without sufficient information to decide whether to depart from the guidelines.” Myrick, at 1359.
We remand for resentencing consistent with this opinion.
SCHEB, A.C.J., and CAMPBELL, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Pope v. State, 475 So. 2d 1021 (Fla. 2d DCA 1985)…lic as required by section 775.04(3), Florida Statutes (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.…
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Tanner v. State, 468 So. 2d 505 (Fla. 2d DCA 1985)…le it is not the purpose of the sentencing guidelines to usurp judicial discretion, Weems v. State, 451 So. 2d 1027 (Fla. 2d DCA 1984), the trial judge must first consider the presumptive guidelines sentence before departing from it. Rasul v. State, 465 So. 2d 535 (Fla. 2d DCA 1985). A trial judge may mitigate or depart “downward” from the presumptive sentence for clear and convincing reasons. State v. Twelves, 463 So. 2d 493 (Fla. 2d DCA 1985). The record must contain a proper evidentiary basis to support a…
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Schmidt v. State, 468 So. 2d 1112 (Fla. 1st DCA 1985)…); and Harvey v. State, 450 So. 2d 926 (Fla. 4th DCA 1984). As to the state’s contention that the absence of a sentencing guideline scoresheet is irrelevant to the sentencing procedure, we disagree. See, Jackson v. State, supra; and Rasul v. State, 465 So. 2d 535 (Fla. 2d DCA 1985), and cases therein cited. Here, unlike the circumstances in Davis v. State, 461 So. 2d 1361 (Fla. 2d DCA 1985), the trial court was not specifically informed of the presumptive sentence for the offense for which the defendant was…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited (11 total)
- Darion Northrup Castle v. State, 330 So. 2d 10 (Fla. 1976)
- Darion Northrup Castle v. State, 305 So. 2d 794 (Fla. 4th DCA 1974)
- Myrick v. State, 461 So. 2d 1359 (Fla. 2d DCA 1984)
- Brady v. State, 457 So. 2d 544 (Fla. 2d DCA 1984)
- Doby v. State, 461 So. 2d 1360 (Fla. 2d DCA 1984)
- McCUISTON v. State, 462 So. 2d 830 (Fla. 2d 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)
- Dude Emshwiller v. State, 462 So. 2d 457 (Fla. 1985)
- Dude Emshwiller v. State, 443 So. 2d 343 (Fla. 2d DCA 1983)