LARRY TEAGUE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Teague appealed his eight-year sentence for grand theft, which departed three cells above the presumptive guideline range based solely on a finding of habitual offender status. The court quashed the sentence and remanded for resentencing, holding that habitual offender status based on factors already scored in the guidelines cannot alone support a departure sentence without additional clear and convincing reasons.
A finding of habitual offender status based on the defendant's criminal record and current conviction that have already been scored in the guidelines cannot support a departure sentence under the sentencing guidelines. Additional clear and convincing reasons beyond those already factored into the scoresheet must be provided to justify a departure sentence.
[1] A departure sentence from the presumptive guidelines range cannot be based solely on a finding that the defendant is a habitual offender if that status is derived from th…
[2] Additional clear and convincing reasons beyond those already scored are required to support a departure sentence when a defendant is adjudicated a habitual offender.
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Join FLexlaw to unlock all legal intelligence“if the adjudication of a defendant as a habitual offender is based on the defendant's criminal record and current conviction which have already been factored into the guidelines scoresheet, then the finding of habitual offender status will not support a departure sentence, pursuant to Hendrix v. State, 475 So. 2d 1218 (Fla.1985). There must be additional clear and convincing reasons given for the departure.”
Establishes the core legal principle that habitual offender status alone cannot justify a departure when based on factors already scored in guidelines.
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Join FLexlaw to unlock all legal intelligenceTeague was convicted of grand theft, second degree. The trial court imposed an eight-year sentence, a three-cell departure from the presumptive guidel…
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SHARP, Judge.
Teague appeals from his sentence of eight years imprisonment, after being convicted of grand theft, second degree.1 This was a three cell departure from the presumptive sentence range under the guidelines.2 The sole written reason given for the aggravated sentence was the notation on the scoresheet that the court “found the defendant to be a habitual offender with enhanced penalty as provided to be necessary for the protection of the public.” We quash the sentence and remand for resentencing.
In Vicknair v. State, 483 So. 2d 896 (Fla. 5th DCA 1986), we held that if the adjudication of a defendant as a habitual offender is based on the defendant’s criminal record and current conviction which have already been factored into the guidelines scoresheet, then the finding of habitual offender status will not support a departure sentence, pursuant to Hendrix v. State, 475 So. 2d 1218 (Fla.1985). There must be additional clear and convincing reasons given for the departure.
The trial judge in this case relied upon Gann v. State, 459 So. 2d 1175 (Fla. 5th DCA 1984), which did not make clear this requirement. Further, the court did not have the benefit of Vicknair at the time of sentencing. The record in this case indicates there may be additional reasons, beyond Teague’s criminal record and violation of probation, which were not scored, to justify a departure sentence. However, we make no determination as to that issue. Accordingly, we quash the sentence and remand for resentencing.
QUASH SENTENCE; REMAND.
DAUKSCH and COBB, JJ., concur. . §§ 812.014(1)(a), (b) & (2)(b)1., Fla.Stat. (1983).
. Fla.R.Crim.P. 3.701(b)(6) & (d)(11).
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Citator
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Brown v. State, 497 So. 2d 887 (Fla. 5th DCA 1986)…nt conviction are already factored into the presumptive guidelines sentence, and thus may not be used again to support a departure. Hendrix v. State, 475 So. 2d 1218 (Fla.1985); Vicknair v. State, 483 So. 2d 896 (Fla. 5th DCA 1986); Teague v. State, 491 So. 2d 296 (Fla. 5th DCA 1986). There must be other and independent clear and convincing written reasons to support a departure. Vicknair; Watson v. State, supra. Contra Hale v. State, 490 So. 2d 122 (Fla. 2d DCA 1986); Ferguson v. State, 481 So. 2d 924 (Fla.…
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King v. State, 494 So. 2d 291 (Fla. 2d DCA 1986)…le of Hendrix v. State, 475 So. 2d 1218 (Fla.1985). Based upon this court’s holding in Ferguson v. State, 481 So. 2d 924 (Fla. 2d DCA 1986), we affirm. Recognizing that other courts have ruled differently on this matter, see e.g., Teague v. State, 491 So. 2d 296 (Fla. 5th DCA 1986) and Vicknair v. State, 483 So. 2d 896 (Fla. 5th DCA 1986), we adhere to Ferguson and again certify as a matter of great public importance the following question: IS THE DETERMINATION OF A DEFENDANT AS A HABITUAL FELONY OFFENDER…
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State v. Teague, 502 So. 2d 1238 (Fla. 1987)…is not a clear and convincing reason for departure under guideline sentencing criteria? Id. at 898. We answered Vicknair’s question in Whitehead v. State, 498 So. 2d 863 (Fla.1986). For reasons expressed in Whitehead, we approve Teague v. State, 491 So. 2d 296 (Fla. 5th DCA 1986). It is so ordered. McDonald, C.J., and OVERTON, EHRLICH, SHAW, BARKETT, GRIMES and KOGAN, JJ., concur.…
Authorities Cited
- Hendrix v. State, 475 So. 2d 1218 (Fla. 1985)
- Vicknair v. State, 483 So. 2d 896 (Fla. 5th DCA 1986)
- Gann v. State, 459 So. 2d 1175 (Fla. 5th DCA 1984)