COY E. NEELEY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Coy Neeley appeals his departure sentences for violent felonies, arguing they exceeded the presumptive guidelines range without clear and convincing reasons. The court vacates the sentences and remands for resentencing, finding the trial court relied on invalid justifications including a repealed habitual offender statute and factors already scored in the guidelines.
The departure sentences are vacated because the reasons given were not valid under the sentencing guidelines. The habitual offender statute was repealed by the sentencing guidelines and cannot justify enhanced sentences. Prior record and use of force, already scored in the guidelines, cannot be used again to justify departure. Additionally, the community service provision violates ex post facto principles when applied to crimes committed before the statute's effective date.
[1] A finding that a person is a habitual offender is not a valid reason to impose a departure sentence under the sentencing guidelines.
[2] A defendant's prior record, which has already been scored, cannot be used as a basis for an upward departure from the presumptive guidelines sentence.
Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“a finding that a person was a habitual offender is no longer a valid reason to impose a departure sentence under the guidelines”
Establishes that the habitual offender statute was repealed by the sentencing guidelines and cannot justify departure sentences.
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Join FLexlaw to unlock all legal intelligenceNeeley was convicted of aggravated battery, possession of a weapon in commission of a felony, aggravated assault, and criminal mischief. The presumpti…
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SHARP, Judge.
Neeley appeals his departure sentences, after his convictions for aggravated battery,1 possession of a weapon in the commission of a felony,2 aggravated assault3 and criminal mischief with damage of $200.00 or less.4 The presumptive guidelines sentence was five and one-half to seven years. The sentences given were ten years on the first three counts and 164 days on the last count, to run concurrently. This constituted a two-bracket departure upwards, and because the reasons to justify it were not clear and convincing, we vacate the sentences and remand for resentencing.
The reasons given by the court for its departure upwards from the presumptive sentence range were:
1. The defendant is an Habitual Felony Offender under Florida Statute 775.-084.
2. The defendant’s past record and the violent nature and excessive force of the present case show the defendant’s violent nature and specifically indicate that the defendant will engage in violent criminal acts upon his release from incarceration.
3. The Court finds that reason # 1 would, standing alone, warrant this departure.
The court failed to make the finding mandated by section 775.084(3) that an enhanced sentence was necessary to protect the public,5 but in view of Whitehead v. State, 498 So. 2d 863 (Fla.1986), it appears the habitual offender statute was repealed by the sentencing guidelines. Therefore, Neeley could not be given an enhanced sentence under section 775.084, and a finding that a person was a habitual offender is no longer a valid reason to impose a departure sentence under the guidelines. Whitehead. The second reason given by the trial court takes into account Neeley’s prior record, which was scored, and is therefore an improper basis to depart upward from the presumptive guidelines sentence. Hendrix v. State, 475 So. 2d 1218 (Fla.1985). Further, in this case use of force against the victim was scored since it was an element of the offense. Therefore, it cannot be used again as a basis for departing. Hendrix; Holden v. State, 487 So. 2d 1199 (Fla. 5th DCA 1986).
We also reverse the trial court’s imposition of community service in lieu of costs as provided by section 27.3455 because the crimes for which Neeley was convicted took place prior to July 1, 1985, when the statute became effective. The application of this statute to defendants whose crimes were committed prior to its effective date violates the ex post facto restrictions of both the United States and the Florida Constitutions.6
Accordingly, we vacate the sentences and remand for resentencing.
VACATE SENTENCES AND REMAND.
ORFINGER and COWART, JJ., concur. . § 784.045, Fla.Stat. (1985).
. § 790.07, Fla.Stat. (1985).
. § 784.021(1)(a), Fla.Stat. (1985).
. § 806.13(l)(b)1, Fla.Stat. (1985).
. See Brown v. State, 457 So. 2d 1079 (Fla. 5th DCA 1984), review denied, 461 So. 2d 113 (Fla.) & 464 So. 2d 556 (Fla.1985).
. U.S. CONST. art. I, § 10, cl. 1; Art. I, § 10, Fla. Const.
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McGRIFF v. State, 517 So. 2d 94 (Fla. 3d DCA 1987)…o Williams v. State, 504 So. 2d at 393; Brockington v. State, 506 So. 2d 495 (Fla. 5th DCA 1987). However, excessive force has been held to be an invalid reason because force is factored into the sentence as an element of the crime. Neeley v. State, 498 So. 2d 690 (Fla. 5th DCA 1986). Although the trial judge stated in her order that each reason by itself was sufficient to justify the departure sentence, we are not convinced beyond a reasonable doubt that the sentence would be the same without the invalid rea…
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Miller v. State, 501 So. 2d 757 (Fla. 5th DCA 1987)…cing. AFFIRM CONVICTION; VACATE SENTENCE AND REMAND FOR RE-SENTENCING. UPCHURCH, C.J., and DAUKSCH and SHARP, JJ., concur. . § 810.02(2), Fla.Stat. (1985). . FIa.R.Crim.P. 3.701. . Whitehead v. State, 498 So. 2d 863 (Fla.1986); Neeley v. State, 498 So. 2d 690 (Fla. 5th DCA, 1986).…
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Gainey v. State, 518 So. 2d 309 (Fla. 2d DCA 1987)…2d 671 (Fla. 2d DCA 1987), Washington v. State, 508 So. 2d 565 (Fla. 2d DCA 1987) and Smith v. Wainwright, 508 So. 2d 768 (Fla. 2d DCA 1987). We decline appellant’s invitation. We note conflict with the fifth district’s decision in Neeley v. State, 498 So. 2d 690 (Fla. 5th DCA 1986). Appellant also argues that the trial court did not comply with the specific findings requirement of section 775.084, Florida Statutes (1985), as outlined in Eutsey v. State, 383 So. 2d 219 (Fla.1980). We agree. The court’s onl…
Authorities Cited
- Hendrix v. State, 475 So. 2d 1218 (Fla. 1985)
- Whitehead v. State, 498 So. 2d 863 (Fla. 1986)
- Holden v. State, 487 So. 2d 1199 (Fla. 5th DCA 1986)
- Brown v. State, 457 So. 2d 1079 (Fla. 5th DCA 1984)