STATE OF FLORIDA, PETITIONER,
v.
CHARLES J. VICKNAIR, A/K/A ROBERT NOEL VICKNAIR, RESPONDENT
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The Florida Supreme Court held that a defendant's habitual offender status cannot be used as the sole basis for departing from guideline sentencing when the factual basis is merely the defendant's prior criminal record already weighed in calculating the guidelines. The court approved the Fifth District's reversal of a departure sentence lacking sufficient independent factual justification.
No. A habitual offender determination cannot serve as the basis for departing from guideline sentencing when the sole factual basis is the defendant's prior criminal record already factored into the guidelines. Any other factual basis for habitual offender status must constitute a clear and convincing reason for departure under guideline criteria.
[1] A defendant's status as an habitual offender, based solely on a criminal record already considered in sentencing guidelines, is not a permissible reason to depart from a…
[2] A criminal record that has already been weighed in arriving at a guideline sentence cannot serve as the sole factual basis for determining habitual offender status to jus…
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Join FLexlaw to unlock all legal intelligence“Is the determination of a defendant as an habitual offender pursuant to section 775.084, Florida Statutes, a permissible reason to depart from a recommended guideline sentence where the sole factual basis for the habitual offender determination is the defendant's criminal record and current conviction which have already been weighed in arriving at the guideline sentence”
The certified question directly addressing the core legal issue of whether prior criminal record already factored into guidelines can justify habitual offender departure
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Join FLexlaw to unlock all legal intelligenceCharles Vicknair was convicted and the trial court sentenced him above the guideline recommendation of 364 days county jail and/or five years probatio…
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[*417] BARKETT, Justice.
The Fifth District Court of Appeal certified the following question in Vicknair v. State, 488 So. 2d 896, 898 (Fla. 5th DCA 1986):
Is the determination of a defendant as an habitual offender pursuant to section 775.084, Florida Statutes, a permissible reason to depart from a recommended guideline sentence where the sole factual basis for the habitual offender determination is the defendant’s criminal record and current conviction which have already been weighed in arriving at the guideline sentence, or when the factual basis for the habitual offender determination, other than the defendant’s criminal record, is not a clear and convincing reason for departure under guideline sentencing criteria?
We have jurisdiction. Art. V, § 3(b)(4), Fla. Const. The district court reversed the sentence of the trial judge which departed from the recommended sentencing guidelines on the basis of the following four reasons:
(1) Defendant was found to be an habitual felony offender pursuant to F.S. 775.084;
(2) Defendant was twice previously convicted of possession of illegal drugs;
(3) Defendant has previously received a suspended sentence with five years probation and fine, and a term of one year imprisonment, all of which have failed to deter or rehabilitate him;
(4) A guideline sentence of 364 days county jail and/or five years probation would be inappropriate in this case.
483 So. 2d at 896-97.
The district court correctly recognized that because there was no factual basis for the trial court’s determination of habitual offender status other than the defendant’s prior criminal record which had already been factored into the guidelines, a departure sentence would conflict with our holding in Hendrix v. State, 475 So. 2d 1218 (Fla.1985).
Subsequent to accepting jurisdiction in this case, we have answered the certified question in the negative in Whitehead v. State, 498 So. 2d 863 (Fla.1986). In accordance with Whitehead, we approve the decision of the district court below.
It is so ordered.
MCDONALD, C.J., and ADKINS, BOYD, EHRLICH and SHAW, JJ., concur. OVERTON, J., concurs in result only.
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Inscho v. State, 521 So. 2d 164 (Fla. 5th DCA 1988)…ntence because the defendant’s prior criminal record, which is the basis for his classification as an habitual offender, has already been weighed in arriving at the presumptive sentence. Vicknair v. State, 483 So. 2d 896 (Fla. 5th DCA 1986), aff'd., 498 So. 2d 416 (Fla.1986). The supreme court likewise so held in Whitehead v. State, 498 So. 2d 863 (Fla.1986). This court followed Whitehead in Frierson v. State, 511 So. 2d 1016 (Fla. 5th DCA 1987). However, sometimes the guidelines authorize a sentence in exce…
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Vicknair v. State, 501 So. 2d 755 (Fla. 5th DCA 1987)…scretionary jurisdiction of the supreme court, and filed a motion to recall this court’s mandate. We denied the motion, and on April 25, 1986, the trial court resentenced Vicknair. The Florida Supreme Court approved our opinion in State v. Vicknair, 498 So. 2d 416 (Fla.1986).2 The state urges that Vicknair’s sentence is a nullity because the resentencing took place during the time the state was seeking discretionary review in the supreme court. Payne v. State, 493 So. 2d 1104 (Fla. 1st DCA), approved, 498 So…1 / 2
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Alander Crapps v. State, 498 So. 2d 415 (Fla. 1986)…BARKETT, Justice. We have for review Crapps v. State, 483 So. 2d 544 (Fla. 1st DCA 1986), because of direct and express conflict with Vicknair v. State, 483 So. 2d 896 (Fla. 5th DCA 1986), approved, 498 So. 2d 416 (Fla.1986). We have jurisdiction. Art. V, § 3(b)(3), Fla. Const. In Crapps, the First District held that a finding of habitual offender status is an adequate reason to depart from the sentencing guidelines. Since accepting jurisdiction in this case…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Hendrix v. State, 475 So. 2d 1218 (Fla. 1985)
- Whitehead v. State, 498 So. 2d 863 (Fla. 1986)