HORACE LEE HOLMES, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The trial court erred by failing to make essential findings required by statute before imposing an extended term of imprisonment under the habitual offender statute. Departure sentences based on habitual offender findings are invalid without proper findings.
Appellant was found to be an habitual offender, and the trial court based a departure sentence on these findings. The appellant contends the trial cou…
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BARFIELD, Judge.
Appellant contends the trial court erred in two respects. First, it erred in determining him to be an habitual offender. Second, it erred in basing a departure sentence on the habitual offender findings.
Departure based on the habitual offender findings is invalid. Whitehead v. State, 498 So. 2d 863 (Fla.1986).
The first issue requires further consideration as it would permit the trial court to sentence up to 5V2 years within the guidelines on a third degree felony otherwise statutorially limited to 5 years. The trial court failed to make essential findings as required by section 775.084(3), Florida Statutes (1985), that an extended term of imprisonment was “necessary for the protection of the public.” The case must be remanded for the trial court to make the required findings, if it can. The trial court may still make a determination that an enhanced sentence under the habitual offender statute is needed. Once it does so, the trial court may then consider whether to sentence up to the guidelines limit or, upon clear and convincing reasons, impose a departure sentence up to the new cap of 10 years. Myers v. State, 499 So. 2d 895 (Fla. 1st DCA 1986); Winters v. State, 500 So. 2d 303 (Fla. 1st DCA 1986).
The case is REVERSED and REMANDED for further sentencing proceedings.
SMITH and JOANOS, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Hall v. State, 511 So. 2d 1038 (Fla. 1st DCA 1987)…2d 303 (Fla. 1st DCA 1987); Myers v. State, 499 So. 2d 895 (Fla. 1st DCA 1987), or departs from the guidelines range for valid reasons other than habitual-offender status, Hester v. State, 503 So. 2d 1342, 1346 (Fla. 1st DCA 1987); Holmes v. State, 502 So. 2d 1302 (Fla. 1st DCA 1987). The limited record before us suggests that Hall’s habitual-offender status was based entirely upon his prior record and reveals no other independent basis for departing from the guidelines; therefore, the trial court will be lim…
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Hester v. State, 503 So. 2d 1342 (Fla. 1st DCA 1987)…ence. Myers v. State, 499 So. 2d 895 (Fla. 1st DCA 1986) (although statutory maximum was extended, appellant was sentenced within the recommended range of the guidelines); Winters v. State, 500 So. 2d 303 (Fla. 1st DCA 1986) (same); Holmes v. State, 502 So. 2d 1302 (Fla. 1st DCA 1987) (on resentencing, trial court authorized, upon clear and convincing reasons, to impose a departure sentence up to the extended statutory maximum penalty). In the instant case, the trial court extended the maximum penalty for each…
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McMILLAN v. State, 516 So. 2d 1064 (Fla. 4th DCA 1987)…1986). Here the sentence imposed exceeds both the statutory maximum penalty and the presumptive guidelines sentence. The validity of such a sentence was recognized in Hall v. State, 511 So. 2d 1038 [*1066] (Fla.1st DCA 1987), and Holmes v. State, 502 So. 2d 1302 (Fla.1st DCA 1987). In Hester v. State, 503 So. 2d 1342 (Fla.1st DCA 1987), a similar sentence was affirmed. We agree with the conclusions in these cases and affirm the judgment and sentence. The other issues raised by appellant are also affirmed.…
Previewing 3 of 8 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Whitehead v. State, 498 So. 2d 863 (Fla. 1986)
- Myers v. State, 499 So. 2d 895 (Fla. 1st DCA 1986)
- Winters v. State, 500 So. 2d 303 (Fla. 1st DCA 1986)