KENNETH W. HARVEY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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SHARP, Judge.
Harvey appeals from his conviction and sentence for second degree murder.1 Employing an “alternative sentencing plan,” the trial judge sentenced him to life imprisonment under either an enhanced guideline sentence, or the habitual offender statute. We affirm the conviction but reverse the sentence.
The sentence can only be considered to be a departure sentence because the habitual offender statute has been superseded by the sentencing guidelines and is no longer viable. Whitehead v. State, 498 So. 2d 863 (Fla.1986). The trial judge listed four reasons for departing, only one of which, excessive brutality, may support a departure under certain circumstances. Lerma v. State, 497 So. 2d 736 (Fla.1986). The sentence must therefore be vacated and the cause remanded to the trial court. Albritton v. State, 476 So. 2d 158 (Fla.1985).
CONVICTION AFFIRMED; SENTENCE VACATED AND CAUSE REMANDED FOR RESENTENCING.
UPCHURCH, C.J., and COBB, J., concur. . § 782.04(2), Fla.Stat. (1985).
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Suresh Bobby Gopaul v. State, 536 So. 2d 296 (Fla. 3d DCA 1988)…rture sentence against a defendant of sexual battery). See also Allen v. State, 502 So. 2d 950 (Fla. 2d DCA 1987); Whitfield v. State, [*299] 515 So. 2d 360 (Fla. 4th DCA 1987); Williams v. State, 500 So. 2d 604 (Fla. 5th DCA 1986); Harvey v. State, 497 So. 2d 996 (Fla. 5th DCA 1986). We find only the trial court’s second reason for its departure sentence an abuse of discretion. Psychological and emotional damage inflicted on a victim as a justification for an enhanced sentence was rejected in Lerma. As ther…
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McCALL v. State, 503 So. 2d 1306 (Fla. 5th DCA 1987)…ng the commission of the crime demonstrate excessive cruelty and brutality.1 In my view, their egregiousness justifies imposition of an aggravated sentence. Fla.R.Crim.P. 3.701(b)(3). See Vanover v. State, 498 So. 2d 899 (Fla.1986); Harvey v. State, 497 So. 2d 996 (Fla. 5th DCA 1986); Lerma v. State, 497 So. 2d 736 (Fla.1986). In a sense all murders involve the use of excessive force because the victim is necessarily killed, and therefore, excessive force is already scored on the guidelines. But some murder…
Authorities Cited
- Whitehead v. State, 498 So. 2d 863 (Fla. 1986)
- City OF Atl. Beach v. Bull, 476 So. 2d 158 (Fla. 1985)
- Albritton v. State, 476 So. 2d 158 (Fla. 1985)
- Ervin Sharp v. State, 497 So. 2d 736 (Fla. 1st DCA 1986)