GARY D. DONAHUE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE

Fla. 2d DCA | 1987-02-06
No. 85-2279
RYDER, A.C.J., and LEHAN and FRANK, JJ., concur.
502 So. 2d 57 Florida District Court of Appeal, Second District (1987) Positive Treatment
Cited by 8 cases

Opinion of the Court
PER CURIAM.

PER CURIAM.

Appellant, Gary D. Donahue, appeals from the trial court’s upward departure from the sentencing guidelines based upon the habitual offender statute, § 775.084, Fla.Stat. (1985). Sentencing pursuant to the habitual offender statute will not support departure from the guidelines. Whitehead v. State, 498 So. 2d 863 (Fla.1986).

We affirm the conviction, vacate the sentence, and remand to the trial court for resentencing within the guidelines. The trial court may depart if there are valid reasons for departure other than treating Donahue as a habitual offender. See Bell v. State, 500 So. 2d 217 (Fla. 1st DCA 1986).

RYDER, A.C.J., and LEHAN and FRANK, JJ., concur.


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  • Morganti v. State, 510 So. 2d 1182 (Fla. 4th DCA 1987)
    …1987); Johnson v. State, 503 So. 2d 959 (Fla. 1st DCA 1987). The Second District appears also to have reached the same result. Smith v. State, 503 So. 2d 457 (Fla. 2d DCA 1987); Brewer v. State, 502 So. 2d 1367 (Fla. 2d DCA 1987); Donahue v. State, 502 So. 2d 57 (Fla. 2d DCA 1987); Beahn v. State, 502 So. 2d 15 (Fla. 2d DCA 1986). The same also appears to be true with regard to the Fifth District. Frierson v. State, 511 So. 2d 1016 (Fla. 5th DCA 1987). Only the Third District, without specifically addressin…
  • Brewer v. State, 502 So. 2d 1367 (Fla. 2d DCA 1987)
    …from the sentencing guidelines. See Whitehead v. State, 498 So. 2d 863 (Fla.1986). On remand the court should sentence defendant pursuant to the guidelines. The court may again depart from the guidelines if valid reasons are given. Donahue v. State, 502 So. 2d 57 (Fla. 2d DCA 1987). Defendant had been found to be indigent and was entitled to notice and an opportunity to be heard before the imposition of court costs. See Jenkins v. State, 444 So. 2d 947 (Fla.1984). Defendant’s sentence is reversed and the…
  • Lynch v. Lyng, 872 F.2d 718 (6th Cir. 1989)
    …o. 86-2577 GA, slip op., (W.D.Tenn. July 5, 1988), 1988 WL 156283, Metzer v. Lyng, 687 F.Supp. 454 (D.C.Minn.1987). A Florida state court came down squarely in support of plaintiffs position. London v. Department of Health & Rehabilitative Services, 502 So. 2d 57 (Fla.1987). Thus, there is no case law compelling this court to support one party over the other. 5. Presumption in Favor of the Secretary Finally, the Secretary argues that, in a close case, courts are required to afford considerable deference to…

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