FRAZIER WILLIAMS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Defendant's twenty-year robbery sentence exceeded guidelines and was reversed because the trial court relied on habitual offender status as the departure reason, which the Florida Supreme Court had disapproved in Whitehead v. State.
A sentence imposed based on habitual offender status as the sole stated reason for departure from sentencing guidelines must be reversed and remanded for resentencing.
[1] Habitual offender status, disapproved as a valid sentencing departure reason by Whitehead v. …
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Join FLexlaw to unlock all legal intelligence“the trial judge had more in mind in departing than the habitual offender status”
Appellee's argument that the trial judge's order suggested additional reasons for departure beyond habitual offender status
Appellant was convicted of robbery and sentenced to twenty years in prison, exceeding the guidelines range of twelve to seventeen years, with the tria…
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DOWNEY, Judge.
Appellant was convicted of robbery and sentenced to twenty years in prison, although the guidelines sentencing range was twelve to seventeen years in prison. The stated reason for departure was the finding that appellant was an habitual offender. Since the imposition of sentence in this case the Supreme Court of Florida has disapproved habitual offender status as a valid reason for departure in Whitehead v. State, 498 So. 2d 863 (Fla.1986). Therefore, the cause must be reversed for resentencing.
Appellee argues that it is obvious from the trial judge’s well considered order on sentencing that the trial judge had more in mind in departing than the habitual offender status. The court went to great pains to point out the immediacy with which appellant committed a new serious crime each time he was released from custody. Although numerous cases have held that temporal circumstances such as a pattern of committing a new crime within a short period of time following release from incarceration is a valid consideration in departing from the sentencing guidelines, e.g., Sabb v. State, 479 So. 2d 845 (Fla. 1st DCA 1985); Swain v. State, 455 So. 2d 533 (Fla. 1st DCA 1984), we are unable to determine whether the trial court would have departed from the guidelines absent the habitual offender reason. Albritton v. State, 476 So. 2d 158 (Fla.1985).
Accordingly, we reverse the sentence appealed from and remand the cause to the trial court for resentencing as it may be advised.
REVERSED AND REMANDED.
HERSEY, C.J., and STONE, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Walker v. State, 555 So. 2d 1221 (Fla. 1st DCA 1989)…e. The trial court’s second reason for departure, a continuing pattern of illegal behavior, is also inapplicable to the facts of the instant case. The trial court cites both Swain v. State, 455 So. 2d 533 (Fla. 1st DCA 1984), and Williams v. State, 507 So. 2d 1200 (Fla. 4th DCA 1987) to support a departure based upon appellant’s commission of the offense while he was out on bond for a still pending offense. However, in Swain and Williams, the sentenced offense was committed shortly after release from incarcer…1 / 2
Authorities Cited
- 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)
- Swain v. State, 455 So. 2d 533 (Fla. 1st DCA 1984)
- Sabb v. State, 479 So. 2d 845 (Fla. 1st DCA 1985)