MARCUS L. BROWN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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A mandatory life sentence under the habitual offender statute does not permit departure from sentencing guidelines when the guidelines sentence is less than life.
The defendant was sentenced to life imprisonment based on his adjudication as an habitual offender. The trial court relied on a now-reversed precedent…
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NIMMONS, Judge.
The defendant appeals from his sentencing guidelines upward-departure sentence of life imprisonment. The sole reason given by the trial court for departure was the defendant’s adjudication as an habitual offender under Section 775.084, Florida Statutes. The judge relied expressly upon this court’s decision in Whitehead v. State, 467 So. 2d 779 (Fla. 1st DCA 1985) which was, during the pendency of this appeal, reversed by the Florida Supreme Court at 498 So. 2d 863 (Fla.1986).
The state, however, still urges affirmance. It argues that since the defendant was convicted of a first degree felony, his adjudication as an habitual offender required imposition of a mandatory term of life imprisonment by reason of Section 775.-084(4)(a)(l), and that such mandatory sentence takes precedence over the lesser guidelines sentence under Fla.R.Cr.P. 3.701(d)(9).
The state’s argument must fail because this court in Walker v. State, 499 So. 2d 884, 886 (Fla. 1st DCA 1986), has construed the Supreme Court’s Whitehead opinion to preclude reliance upon habitual offender status for departure even where application of the habitual offender statute purports to increase the allowable sentence to a mandatory life term.
REVERSED and REMANDED for re-sentencing in accordance with applicable law.
SHIVERS and THOMPSON, JJ„ concur.
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State v. Brown, 530 So. 2d 51 (Fla. 1988)…BARKETT, Justice. We have for review Brown v. State, 509 So. 2d 1164 (Fla. 1st DCA 1987), based on express and direct conflict with Hoefert v. State, 509 So. 2d 1090 (Fla. 2d DCA 1987). We have jurisdiction. Art. V, § 3(b)(3), Fla. Const. We approve the result reached below. Respondent was convicted of armed robbery…
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Vondell Poppell v. State, 509 So. 2d 390 (Fla. 1st DCA 1987)…would take precedence over the lesser guidelines sentence under Fla.R.Crim.P. 3.701(d)(9). Thus, so the argument goes, the defendant did obtain a valuable quid pro quo for his agreement to the ten year term. That argument was made in Brown v. State, 509 So. 2d 1164 (Fla. 1st DCA 1987) and rejected: The state’s argument must fail because this court in Walker v. State, 499 So. 2d 884, 886 (Fla. 1st DCA 1986), has construed the Supreme Court’s Whitehead opinion to preclude reliance upon habitual offender status…
Authorities Cited
- Whitehead v. State, 498 So. 2d 863 (Fla. 1986)
- Whitehead v. State, 467 So. 2d 779 (Fla. 1st DCA 1985)
- Walker v. State, 499 So. 2d 884 (Fla. 1st DCA 1986)