LARRY HOLT, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE

Fla. 1st DCA | 1985-07-03
No. AX-70
BOOTH, C.J., and BARFIELD, J., concur.
472 So. 2d 551 Florida District Court of Appeal, First District (1985) Positive Treatment
Cited by 18 cases

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Synopsis

Inmate Larry Holt was convicted of assisting in a riot and hurling deadly missiles at buildings at a correctional facility. On appeal, the First District Court of Appeal affirmed the convictions but vacated and remanded the sentence due to sentencing guideline errors, including failure to obtain the defendant's affirmative selection for guidelines sentencing and failure to state written reasons for departure from the guidelines.

Holding

The court affirmed the denial of the discharge and judgment of acquittal motions but found reversible sentencing error. The habitual felony offender statute remains applicable under sentencing guidelines, but two errors occurred: the defendant did not affirmatively select guidelines sentencing (required for pre-October 1, 1983 offenses), and the court failed to state written reasons for departing from the guidelines.

Headnotes

[1] The habitual felony offender statute remains applicable even when an individual is subject to sentencing under the sentencing guidelines.

[2] A defendant must affirmatively select to be sentenced under the guidelines for offenses committed prior to the guidelines' effective date.

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Key Quotes

“Fundamental to sentencing under the guidelines where, as here, the offense was committed prior to their October 1, 1983 effective date, is the defendant's affirmative selection to be so sentenced. Here, the record does not indicate such an affirmative selection on appellant's part. That, in itself, is reversible error.”

Establishes that defendant's affirmative choice for guidelines sentencing is required for pre-October 1983 offenses and its absence is reversible error.

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Facts & Procedural History

Larry Holt, an inmate at Cross City Correctional Institution, was convicted of assisting in a riot and hurling deadly missiles at buildings. The offen…

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Topics
Affirmative Selection For Sentencing Affirmative Selection Mandatory Life Sentence Protection Of The Public

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Opinion of the Court
WIGGINTON, Judge.

WIGGINTON, Judge.

This appeal is from a judgment and sentence for assisting in a riot and hurling deadly missiles at buildings. At the time the offenses were committed, appellant was an inmate at Cross City Correctional Institution. On appeal he raises the following three points: I. Whether the trial court erred in denying the defense motion for discharge; II. Whether the trial court erred in denying the defense motion for judgment of acquittal; and III. Whether the trial court erred in sentencing under the guidelines and in departing therefrom. We find no error under Points I and II, and affirm. Specifically, as to Point I, we affirm on the basis of Height v. State, 459 So. 2d 470 (Fla. 1st DCA 1984). However, we do find error under Point III, and therefore vacate the sentence and remand for resentencing.

We initially disagree with appellant’s position that the trial court improperly applied section 775.084, the habitual felony offender statute, in sentencing him under the guidelines. This Court has held on several occasions that the habitual felony offender statute remains applicable even though an individual may be subject to sentence under the sentencing guidelines. Whitehead v. State, 467 So. 2d 779 (Fla. 1st DCA 1985); Walker v. State, 473 So. 2d 694 (Fla. 1st DCA 1985); Cuthbert v. State, 459 So. 2d 1098 (Fla. 1st DCA 1984).

Nevertheless, we do agree that sentencing errors did occur below. Fundamental to sentencing under the guidelines where, as here, the offense was committed prior to their October 1, 1983 effective date, is the defendant’s affirmative selection to be so sentenced. Here, the record does not indicate such an affirmative selection on appellant’s part. That, in itself, is reversible error. Patterson v. State, 462 So. 2d 33 (Fla. 1st DCA 1984); Randolph v. State, 458 So. 2d 64 (Fla. 1st DCA 1984). The error was compounded, however, by the trial court’s failure to put in writing its reasons for departing from the guidelines. Again, that omission constitutes reversible error. Oden v. State, 463 So. 2d 313 (Fla. 1st DCA 1985); Gage v. State, 461 So. 2d 202 (Fla. 1st DCA 1984); Millett v. State, 460 So. 2d 489 (Fla. 1st DCA 1984); Roux v. State, 455 So. 2d 495 (Fla. 1st DCA 1984); Jackson v. State, 454 So. 2d 691 (Fla. 1st DCA 1984).

Since the cause will be remanded to the trial court for resentencing, we caution the court, in the event it again sentences appellant as a habitual felony offender, to pay careful heed to the statutory scheme of section 775.084 and to make specific findings of fact as to why it is necessary for the protection of the public to sentence appellant to an extended term. Section 775.084(4)(a), Fla.Stat. (1983). A bare, con-clusory statement to that effect is insufficient to satisfy the statutory requirement. Walker v. State, 462 So. 2d 452 (Fla.1985).

Next, should appellant affirmatively select sentencing under the guidelines, we point out that the court’s finding, supported by the record, that appellant is a habitual felony offender constitutes a clear and convincing reason for departure. Whitehead v. State. Nevertheless, if the sentence exceeds the guidelines’ recommended range for that reason, the court must still comply with rule 3.701d.ll., Florida Rules of Criminal Procedure, by stating in writing its reasons for departure. Cuthbert v. State, 459 So. 2d at 1100, n. 3. But cf. Walker v. State, 473 So. 2d 694 (where the habitual felony offender statute subject ed the appellant to a mandatory life sentence, the mandatory sentence, by virtue of rule 3.701d.9., took precedence over the lesser guidelines’ recommended sentence, thereby alleviating the necessity for the trial court to justify its departing from the guidelines).

Based on the foregoing, the sentence is VACATED and the cause is REMANDED for resentencing. If appellant should select sentencing under the guidelines, he is entitled to be sentenced under the rules in effect at the time of the imposition of this sentence now being reviewed. Saunders v. State, 459 So. 2d 1119 (Fla. 1st DCA 1984).

BOOTH, C.J., and BARFIELD, J., concur.

Cases With Similar Vibessemantic neighbors from the corpus

Citator

Cited By

  • Alander Crapps v. State, 483 So. 2d 544 (Fla. 1st DCA 1986)
    …ted.] The habitual offender order entered by the trial judge met that requirement as to case number BC-151. We further find that the departure order was sufficient as to case number BC-151. Ground one is a proper basis for departure. Holt v. State, 472 So. 2d 551 (Fla. 1st DCA 1985). Ground two is also a valid basis for departure. Casteel v. State, 481 So. 2d 72 (Fla. 1st DCA 1986). However, ground three is clearly an improper reason for departure [Hubler v. State, 458 So. 2d 350 (Fla. 1st DCA 1984)] as is g…
  • Cawthon v. State, 486 So. 2d 90 (Fla. 5th DCA 1986)
    …OR RESENTENCING. DAUKSCH and UPCHURCH, JJ., concur. . § 810.02(2), Fla.Stat. (1983). . § 812.014, Fla.Stat. (1983). . § 810.06, Fla.Stat. (1983). . §§ 784.021(l)(a) & 777.04(1), Fla.Stat. (1983). . Fla.R.Crim.P. 3.701(d)(ll). . Holt v. State, 472 So. 2d 551 (Fla. 1st DCA 1985). . See Roberson v. State, 483 So. 2d 528 (Fla. 5th DCA 1986); Smith v. State, 480 So. 2d 663 (Fla. 5th DCA 1985); Scurry v. State, 472 So. 2d 779 (Fla. 1st DCA 1985); Sloan v. State, 472 So. 2d 488 (Fla.2d DCA 1984); Swain v. St…
  • Winters v. State, 475 So. 2d 1025 (Fla. 1st DCA 1985)
    …, the trial judge erred. This Court has held that '“we must be apprised of the underlying facts and circumstances which the trial judge relied on in making that finding.” Adams v. State, 376 So. 2d 47, 58 (Fla. 1st DCA 1979); see also Holt v. State, 472 So. 2d 551 (Fla. 1st DCA 1985); and Weston v. State, 452 So. 2d 95 (Fla. 1st DCA 1984). “That finding” referred to in Adams is the second-stage determination under section 775.084(3), that an extended sentence is necessary for the protection of the public from…

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