AL SMITH, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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A defendant's status as a habitual offender cannot be used as a reason to depart from the sentencing guidelines.
The defendant was convicted of assault and throwing a deadly missile, and sentenced to 23 years. After a prior appeal vacated the sentence, the trial …
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SCHEB, Judge.
This is the second appearance of this case before this court. The defendant was convicted of simple assault and throwing a deadly missile into an occupied vehicle. The trial court departed from the presumptive guidelines range and sentenced the defendant to twenty-three years in prison. On appeal, this court affirmed the defendant’s conviction but vacated his sentence and remanded for resentencing. Smith v. State, 488 So. 2d 593 (Fla. 2d DCA 1986).
On remand, the trial judge entered a written order on May 28, 1986, finding the defendant to be a habitual offender and, again, sentenced him to twenty-three years in prison. Once again the defendant has appealed.
In Whitehead v. State, 493 So. 2d 863 (Fla.1986), the supreme court held that the habitual offender statute, Section 775.084, Florida Statutes (1985), has been effectively subsumed by the sentencing guidelines and a finding that a defendant is a habitual offender cannot be relied upon as a reason for departure from the recommended guidelines sentence. Of course, the decision in Whitehead was rendered after the defendant was resentenced.
Accordingly, we vacate the defendant’s sentence and remand to the trial court for resentencing. If the court chooses to depart from the recommended guidelines sentence, it must set forth in writing clear and convincing reasons justifying departure. Otherwise, the court shall resentence the defendant within the recommended range under the sentencing guidelines. The defendant shall be furnished notice of the resentencing and shall be entitled to be present.
Reversed and remanded.
DANAHY, C.J., and SCHOONOVER, J., concur.
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Alphonso Brown v. State, 506 So. 2d 1068 (Fla. 2d DCA 1987)…o. 2d 587 (Fla.1987). Since there were no written reasons for departure, we reverse and remand for either correction of the sentence or entry of written reasons supporting the departure. State v. Jackson, 478 So. 2d 1054 (Fla.1985); State v. Bruner, 503 So. 2d 457 (Fla. 2d DCA 1987). Appellant also correctly asserts that the court erred in imposing $1,000 costs without prior notice. Jenkins v. State, 444 So. 2d 947 (Fla.1984). We, therefore, strike the costs without prejudice to the state seeking imposition…
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Slay v. State, 508 So. 2d 1268 (Fla. 1st DCA 1987)…s for enhancing a guidelines sentence. Accordingly, we affirm Slay’s conviction but remand this matter for resentencing. The trial court is not, however, barred from imposing a departure sentence based upon reasons which are valid. Smith v. State, 503 So. 2d 457 (Fla. 2d DCA 1987). ERVIN and WIGGINTON, JJ., concur.…
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Morganti v. State, 510 So. 2d 1182 (Fla. 4th DCA 1987)…A 1987); Allen v. State, 506 So. 2d 1149 (Fla. 1st DCA 1987); Avery v. State, 505 So. 2d 596 (Fla. 1st DCA 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. Friers…
Authorities Cited
- Al Smith v. State, 488 So. 2d 593 (Fla. 2d DCA 1986)