JIMMY DAVIS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Jimmy Davis appeals sentences totaling 15 years imposed using the habitual offender statute to exceed guidelines. The First District Court of Appeal affirms the sentences as lawful but remands for correction of the record regarding one case that was improperly treated under the guidelines.
The sentences are not in violation of the relevant sentencing statutes and rules. However, the sentence in Case No. 83-1879 should not have been treated under the guidelines due to lack of affirmative selection, and the case is remanded for correction of the record to reflect that it was not imposed under the guidelines.
[1] A trial court may exceed the statutory maximum sentence for an offense by utilizing the habitual offender statute.
[2] A trial court may exceed the recommended guidelines sentence when clear and convincing reasons are provided.
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Join FLexlaw to unlock all legal intelligence“Sentences imposed by trial judges must be in all cases within any relevant minimum and maximum sentence limitations provided by statute and must conform to all other statutory provisions”
Establishes the statutory requirement that sentences must comply with sentencing limitations
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Join FLexlaw to unlock all legal intelligenceDavis received consecutive ten and five year sentences and four concurrent five year sentences. The trial court used the habitual offender statute und…
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JOANOS, Judge.
Davis appeals the imposition of guidelines sentences totalling 15 years (actually consecutive ten and five year sentences and four concurrent five year sentences) in which the trial court used the habitual offender statute, Section 775.-084(4)(a), to exceed the statutory maximum sentence as to one offense and also as a clear and convincing reason to exceed the recommended guidelines sentence. We affirm. The sentences are not in violation of Section 921.001(5), providing that “Sentences imposed by trial judges must be in all cases within any relevant minimum and maximum sentence limitations provided by statute and must conform to all other statutory provisions,” or of Fla.R.Crim.P. 3.701(d)(12), providing “Sentences for separate offenses: A sentence must be imposed for each offense. However, the total sentence cannot exceed the total guidelines senience unless a written reason is given.”
Appellant has pointed out that one of the four concurrent five year sentences, imposed in Case No. 83-1879, in which the offense occurred before October 1, 1983, was treated under the guidelines even though the record contains no evidence of an affirmative selection to be treated under the guidelines in that ease. Appellant is correct, but in this case as in Tillman v. State, 466 So. 2d 20 (Fla. 2d DCA 1985), it appears “[n]o purpose would be served to order resentencing since the court obviously intended to impose the maximum penalties permitted by law,” therefore we remand for correction of the record to show that the sentence in Case No. 83-1879 was not imposed under the guidelines.
AFFIRMED and REMANDED for correction of record.
ERVIN and BARFIELD, JJ., concur.
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Citator
Cited By
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Kaymore v. State, 482 So. 2d 581 (Fla. 5th DCA 1986)…v. State, 473 So. 2d 815 (Fla. 2d DCA 1985). In this case, however, the record reveals that the trial court obviously would have imposed the maximum statutory penalty in any event, and no purpose would be served by resentencing. See Davis v. State, 478 So. 2d 1154 (Fla. 1st DCA 1985); Tillman v. State, 466 So. 2d 20 (Fla. 2d DCA 1985). Accordingly, we affirm the sentence but remand with directions to correct the record to reflect that appellant was not sentenced under the guidelines. AFFIRMED and REMANDED f…
Authorities Cited
- Gibson Hauling, Inc. v. Armbrister, 466 So. 2d 20 (Fla. 2d DCA 1985)
- Tillman v. State, 466 So. 2d 20 (Fla. 2d DCA 1985)