ELTON HALE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Elton Hale appeals his sentencing as a habitual offender, arguing that relying on prior convictions to enhance his sentence beyond the guidelines constitutes impermissible double-counting. The Florida appellate court affirmed the sentence, holding that the habitual offender statute operates independently of sentencing guidelines and does not constitute double-dipping.
The court affirmed the habitual offender sentence, holding that the habitual offender statute operates independently of and is not preempted by sentencing guidelines. Once a habitual offender finding is made in compliance with statute, the trial court may impose an enhanced sentence, and such departure from guidelines is based on the habitual offender finding itself, not on subsidiary considerations.
[1] A trial court may sentence a defendant as a habitual offender beyond the sentencing guidelines' presumptive range when the requirements of the habitual offender statute a…
[2] The habitual offender statute is not preempted or vitiated by the creation of sentencing guidelines.
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Join FLexlaw to unlock all legal intelligence“the creation of guidelines' sentencing was not intended to preempt or vitiate sentencing pursuant to the habitual offender statute”
Establishes that sentencing guidelines do not eliminate the habitual offender statute
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Join FLexlaw to unlock all legal intelligenceHale was convicted of robbery under Florida law. The state sought to treat him as a habitual offender based on a felony conviction within the prior fi…
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FRANK, Judge.
The appellant, Elton Hale, appeals from the trial court’s order sentencing him beyond the sentencing guidelines’ presumptive range as a result of the determination, reached in accordance with section 775.084, Florida Statutes, that he is a habitual offender. Hale was convicted of robbery, violative of section 812.13(2)(c), Florida Statutes (1983).
After he received notice of the state’s intent to treat him as a habitual offender, a hearing was conducted at which the trial court found him to be a habitual offender. At the outset of the hearing the trial court noted Hale’s felony conviction within the prior five years. The court also concluded, based in part upon several earlier convictions disclosing a “pattern of behavior of continued robberies, [and] violent crimes,” that protection of the public necessitated sentencing Hale to an extended term of imprisonment. As a result, Hale was sentenced pursuant to the habitual offender statute to 25 years of incarceration, which constituted a departure from the sentencing guidelines’ recommended range shown by a scoresheet to be 12-17 years of imprisonment.
Hale challenges the trial court’s departure from the guidelines asserting that its reliance upon prior felony convictions to justify a habitual offender sentence constitutes impermissible “double dipping” under Hendrix v. State, 475 So. 2d 1218 (Fla. 1985). We dealt with and rejected this contention in Ferguson v. State, 481 So. 2d 924 (Fla. 2d DCA 1986) and Fleming v. State, 480 So. 2d 715 (Fla. 2d DCA 1986).
We adhere to the view that the creation of guidelines’ sentencing was not intended to preempt or vitiate sentencing pursuant to the habitual offender statute. See Whitehead v. State, 467 So. 2d 779 (Fla. 1st DCA 1985).
We find nothing in section 921.005, Florida Statutes, to indicate that consequence, and in the absence of a defined purpose to repeal the habitual offender statute, we are unwilling to ascribe that result to the legislature. The habitual offender statute was tailored to reach particularized circumstances calling for extraordinary penalties in the interest of protecting society.
Thus, once the trial court has concluded that a habitual offender sentence is warranted, and it has achieved compliance with section 775.084’s prescriptions, the trial court may impose the habitual offender sentence by noting on the score-sheet or in a separate document that departure from the guidelines has occurred and that the defendant has been sentenced pursuant to section 775.084. In that circumstance, departure is not based upon the subsidiary considerations supporting the habitual offender sentence, but rather upon the finding that the defendant is a habitual offender. In the instant matter, the record supports the trial court’s determination to sentence Hale as a habitual offender.
Accordingly, the appellant’s sentence as well as his conviction are affirmed.
GRIMES, A.C.J., and HALL, J., concur.
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Citator
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Rowe v. State, 496 So. 2d 857 (Fla. 2d DCA 1986)…ned an effort to procure an enhanced penalty under the habitual offender statute. Had the habitual offender statute been invoked, the trial court would have been empowered to impose a departure sentence far in excess of ten years. See Hale v. State, 490 So. 2d 122 (Fla. 2d DCA 1986). We emphasize that Rowe’s sentence stems from his own initiative, and not from any action of the trial court undertaken independently of the plea bargain. Finally, Rowe maintains that no scoresheet was prepared prior to the depar…
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Massard v. State, 501 So. 2d 1289 (Fla. 4th DCA 1986)…tencing guidelines, two of the four reasons were proper: 1. Appellant was an habitual felony offender. We hold that this is a proper reason for departure from the guidelines. See Anderson v. State, 489 So. 2d 855 (Fla. 1st DCA 1986); Hale v. State, 490 So. 2d 122 (Fla. 2d DCA 1986). But see Vicknair v. State, 483 So. 2d 896 (Fla. 5th DCA 1986). 2. It was necessary to remove appellant from society as he presented a clear and present danger thereto. This is equivalent to a finding that a sentence within the g…
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Watson v. State, 492 So. 2d 831 (Fla. 5th DCA 1986)…sentencing guidelines, the reasons supporting the habitual offender determination must be clear and convincing reasons for imposing a departure sentence, independent of the defendant’s prior criminal record and current offense. Contra Hale v. State, 490 So. 2d 122 (Fla. 2d DCA 1986); Ferguson v. State, 481 So. 2d 924 [*833] (Fla. 2d DCA 1985); Fleming v. State, 480 So. 2d 715 (Fla. 2d DCA 1986). Appellant also contends that the trial court erred in failing to put the factual bases of the habitual offender de…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Hendrix v. State, 475 So. 2d 1218 (Fla. 1985)
- Whitehead v. State, 467 So. 2d 779 (Fla. 1st DCA 1985)
- Fleming v. State, 480 So. 2d 715 (Fla. 2d DCA 1986)
- Vera v. State, 481 So. 2d 924 (Fla. 4th DCA 1985)
- Ferguson v. State, 481 So. 2d 924 (Fla. 2d DCA 1985)