STINGRAY JONES, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Stingray Jones appealed his sentence, challenging the trial court's departure from sentencing guidelines. The Fourth District Court of Appeal reversed the sentence and remanded for resentencing, finding that three of the four reasons given for departure were invalid under Florida law.
The trial court's first reason for departure (habitual offender status) was invalid because the habitual offender statute can no longer operate as an alternative to guidelines sentencing. The second reason (false statements/perjury) was invalid because it punished Jones for an uncharged crime. The third reason (offense committed shortly after release from prison) was valid. The fourth reason (subsequent criminal conduct) was invalid because it was already calculated in the guideline score. Because three of four reasons were invalid, the sentence was reversed and remanded.
[1] The habitual offender statute cannot operate as a reason for departure from sentencing guidelines.
[2] A trial court cannot punish a defendant for perjury for which they have not been charged or convicted.
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“The habitual offender statute, section 775.084, Florida Statutes (1985), can no longer operate as an alternative to guidelines sentencing nor as a reason for departure.”
Establishes that habitual offender status is not a valid reason for sentencing departure under current law.
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Join FLexlaw to unlock all legal intelligenceJones was an habitual offender who committed an offense eight days after release from his third prison commitment. The trial court found Jones had lie…
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PER CURIAM.
Of the six issues which have been raised herein, only those which we find to have merit are addressed in this opinion, by which we reverse appellant’s sentence and remand for resentencing.
The trial court gave the following reasons for departure from the guidelines:
1. The Defendant is an habitual offender pursuant to F.S. 775.084.
2. The Defendant lied to this Court when he was placed on probation as to his name, aliases, and prior record. The Defendant has made a career out of crime and when caught uses various names to escape responsibility.
3. The Defendant committed the instant offense only eight days after being released from his third separate prison commitment.
4. The Defendant committed three felonies and five misdemeanors after he was placed on probation for the instant offense.
The habitual offender statute, section 775.084, Florida Statutes (1985), can no longer operate as an alternative to guidelines sentencing nor as a reason for departure. Whitehead v. State, 498 So. 2d 863 (Fla.1986). Cf. Winters v. State, 500 So. 2d 303 (Fla. 1st DCA 1986) (habitual offender statute still effective basis on which to exceed statutory maximum so long as sentence imposed does not exceed guidelines recommendation). Accordingly, the trial court’s first basis for departure has been eliminated.
The trial court’s second basis for departure is also invalid. In effect, it punishes appellant for a crime (perjury) for which he has neither been charged nor convicted, in contravention of Florida Rule of Criminal Procedure 3.170(f). See Sloan v. State, 472 So. 2d 488 (Fla. 2d DCA 1985), quashed in part on other grounds, 491 So. 2d 276 (Fla.1986); Beauvais v. State, 475 So. 2d 1342 (Fla. 3d DCA 1985).
The trial court’s third reason has been found to be a valid reason for departure. Nixon v. State, 494 So. 2d 222 (Fla. 1st DCA 1986) (defendant’s commission of offense in question only 3½ months after release from prison valid reason for departure). However, the fourth reason given, as presently worded, is not valid as it has already been calculated into appellant’s guideline score. Hendrix v. State, 475 So. 2d 1218 (Fla.1985). Since we cannot find beyond a reasonable doubt that the trial court would have departed as it did had it known three of the four reasons given for departure were invalid, we reverse and remand for resentencing. Albritton v. State, 476 So. 2d 158 (Fla.1985).
GLICKSTEIN, DELL and STONE, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
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Linford Fletcher v. State, 508 So. 2d 506 (Fla. 4th DCA 1987)…ury, the defendant was neither convicted nor charged with any such offense. The decisions around the state have not found perjury at trial to be a valid reason for departure. See Beauvais v. State, 475 So. 2d 1342 (Fla. 3d DCA 1985); Jones v. State, 501 So. 2d 178 (Fla. 4th DCA 1986). If peijury at trial is not a clear and convincing reason to depart, then attempted subornation of peijury at trial would have to be likewise unconvincing. The third reason given for departure is much more complex and the courts…
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Bannerman v. State, 544 So. 2d 1132 (Fla. 4th DCA 1989)…ximum of seventeen years. The sentencing court departed from the guidelines for several reasons, some valid and some invalid. The invalid reasons for departure included findings that the defendant did not tell the truth at his trial, Jones v. State, 501 So. 2d 178 (Fla. 4th DCA 1987); that he has shown an utter disregard for society, McClure v. State, 513 So. 2d 1119 (Fla. 2d DCA 1987); that he lacked remorse; and that he denied his guilt against the weight of witness testimony. State v. Mischler, 488 So. 2d…
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Stingray Jones v. State, 517 So. 2d 121 (Fla. 4th DCA 1987)…WALDEN, Judge. Appellant Stingray Jones was convicted of grand theft, a third degree felony under § 812.014(l)(b), Florida Statutes. Appellant’s original sentence was reversed and the case was remanded for resentencing. Jones v. State, 501 So. 2d 178 (Fla. 4th DCA 1987). Upon resentencing, appellant was sentenced to ten years in prison, with credit for time served. The maximum statutory penalty under § 775.082(3)(d), Florida Statutes, is five years. The recommended guidelines sentence was two an…1 / 2
Previewing 3 of 4 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)
- 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)
- Sloan v. State, 472 So. 2d 488 (Fla. 2d DCA 1985)
- Winters v. State, 500 So. 2d 303 (Fla. 1st DCA 1986)
- Juvenal Pina v. Pina, 475 So. 2d 1342 (Fla. 3d DCA 1985)
- Bender v. First Fid. Sav. & Loan Ass'n OF Winter Park, 491 So. 2d 276 (Fla. 1986)
- Sloan v. State, 491 So. 2d 276 (Fla. 1986)
- Job Elton Nixon v. State, 494 So. 2d 222 (Fla. 1st DCA 1986)