ERVIN SHARP, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Appellant's departure from sentencing guidelines based on habitual felony offender status was improper under Whitehead v. State, requiring remand for resentencing within guidelines or valid written departure reasons.
A departure from sentencing guidelines based solely on the criteria of the habitual offender statute is improper and conflicts with prior precedent.
[1] A departure from sentencing guidelines based on criteria of the habitual offender statute is improper and conflicts with Hendrix v. …
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Join FLexlaw to unlock all legal intelligenceAppellant was convicted of robbery with aggravated battery and received a sentence departing from the recommended guidelines based on his status as a …
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WIGGINTON, Judge.
Appellant challenges the trial court’s decision to depart from the recommended guidelines sentence on the basis of appellant’s status as a habitual felony offender. He also challenges the extent of the departure. We need not reach that second issue, however, as we reverse on the first in light of the supreme court’s very recent decision in Whitehead v. State, — So. 2d-, Case No. 67,053 (Fla. Oct. 30, 1986), holding that a departure based on the criteria of the habitual offender statute is improper and in conflict with Hendrix v. State, 475 So. 2d 1218 (Fla.1985). Accordingly, the cause is remanded for resentencing within the guidelines unless a valid written reason for departing from the guidelines is set forth.1
REVERSED.
ERVIN and BARFIELD, JJ., concur. . Although not challenged on appeal, we note the remaining reason for departure was premised on "obvious and profound emotional shock and trauma” suffered by the victim. Because the offense to which appellant pled nolo conten-dere was robbery with aggravated battery, the court, in considering whether to depart for that reason should be cognizant of the holdings in Lerma v. State, 497 So. 2d 736, (Fla.1986); State v. Cote, 487 So. 2d 1039 (Fla.1986); and Williamson v. State, 496 So. 2d 886 (Fla. 2d DCA 1986).
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Citator
Cited By (93 total)
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Donald B. Banks v. State, 732 So. 2d 1065 (Fla. 1999)…asonably justify the departure.”). . See generally § 921.0016(3), (4), Fla. Stat. (1995) (setting forth a non-exclusive list of aggravating and mitigating factors to be weighed by the trial court). See supra note 2. . See generally Lerma v. State, 497 So. 2d 736, 738 (Fla.1986), receded from on other grounds State v. Rousseau, 509 So. 2d 281, 284 (Fla. 1987); State v. Mischler, 488 So. 2d 523, 525 (Fla.1986), superseded on other grounds by ch. 87-110, § 2, Laws of Fla. and superseded in part on other ground…
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Keys v. State, 500 So. 2d 134 (Fla. 1986)…rty to violent crimes against persons is a clear and convincing reason for departure and is supported by the facts of this case. The third reason for departure given by the trial court involved psychological injury to the victim. In Lerma v. State, 497 So. 2d 736 (Fla.1986), we rejected this reason as “nearly all sexual battery cases inflict emotional hardship on the victim.” At 739. The fourth reason cited, danger to the community, is not a clear and convincing reason for departure in this case. We can onl…
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State v. Rousseau, 509 So. 2d 281 (Fla. 1987)…im as a valid reason for departure in that case because the statutory elements defining aggravated assault, sections 784.011(1) and 784.021, Florida Statutes, require that the defendant create a “well-founded fear” in the victim. In Lerma v. State, 497 So. 2d 736 (Fla. 1986), we held that emotional hardship to a victim in a sexual battery case cannot justify departure because “nearly all sexual battery cases inflict emotional hardship on the victim.” Id. at 739. In Casteel v. State, 498 So. 2d 1249 (Fla. 19…
Previewing 3 of 93 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)
- State v. Cote, 487 So. 2d 1039 (Fla. 1986)
- Kimbler v. State, 496 So. 2d 886 (Fla. 1st DCA 1986)
- Lerma v. State, 497 So. 2d 736 (Fla. 1986)