JOHNNY LEE KING, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Johnny Lee King was convicted of cocaine possession and sentenced as a habitual offender to seven years imprisonment, within the guidelines range but above the statutory maximum. The Fourth District affirmed, holding that the habitual offender statute may be used to enhance sentences within the guidelines range, and certified a question to the Florida Supreme Court regarding the continued viability of the statute post-Whitehead.
The trial court's findings constituted a sufficient basis for applying the habitual offender statute. The habitual offender statute remains viable and may be used to enhance a sentence as long as it does not exceed the guidelines recommended sentence. Whitehead does not prohibit use of the statute to enhance sentences within the guidelines range; it only prohibits it as a clear and convincing reason to depart from the guidelines.
[1] A trial court's specific findings on the record can constitute a sufficient basis for the application of the habitual offender statute.
[2] The habitual offender statute is not rendered non-viable by a judicial decision holding that it is not a clear and convincing reason to depart from recommended sentencing…
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Join FLexlaw to unlock all legal intelligence“the holding of the court was that the habitual offender statute is no longer a clear and convincing reason to depart from the guidelines recommended sentence”
Explains the proper interpretation of Whitehead v. State and distinguishes it from a complete prohibition on the habitual offender statute
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Join FLexlaw to unlock all legal intelligenceJohnny Lee King was convicted of possession of cocaine, a third degree felony with a statutory maximum penalty of five years. The guidelines scoreshee…
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PER CURIAM.
Appellant Johnny Lee King was convicted of possession of cocaine, a third degree felony carrying a statutory maximum penalty of five years’ imprisonment. The recommended guidelines sentence range on appellant’s scoresheet was five and one-half to seven years’ imprisonment. The trial court adjudged appellant a habitual offender under section 775.084, Florida Statutes (1985), and sentenced him to seven years in prison.
Appellant contends that the trial court erred in sentencing him as a habitual offender because (1) the court’s findings did not warrant application of that statute, and (2) the habitual offender statute is no longer viable, relying upon Whitehead v. State, 498 So. 2d 863 (Fla.1986).
To justify its resort to the habitual offender statute the trial court made specific findings on the record, which we hold constitute a sufficient basis for application of that statute. Furthermore, we reject appellant’s second contention that the habitual offender statute is no longer available to the trial courts in the sentencing process because of the supreme court’s decision in Whitehead. Reliance on Whitehead for that contention is misplaced. In our view, a careful reading of this decision reflects that the holding of the court was that the habitual offender statute is no longer a clear and convincing reason to depart from the guidelines recommended sentence. Whitehead does not hold that section 775.-084, Florida Statutes (1985), cannot be used to enhance a sentence as long as it does not exceed the guidelines recommended sentence. Therefore, it appears appropriate to us for the trial court to resort to the habitual offender statute to enhance appellant’s sentence beyond the statutory maximum, so long as it remains within the guidelines recommended range.
According to our research, all but one of the cases decided since Whitehead have construed that decision to allow use of the habitual offender statute as we propose to apply it in the present case. See Hall v. State, 511 So. 2d 1038 (Fla. 1st DCA 1987); Smith v. Wainwright, 508 So. 2d 768 (Fla. 2d DCA 1987); Hoefert v. State, 509 So. 2d 1090 (Fla. 2d DCA 1987); Myers v. State, 499 So. 2d 895 (Fla. 1st DCA 1986); Winters v. State, 500 So. 2d 303 (Fla. 1st DCA 1986). The lone exception is Frierson v. State, 511 So. 2d 1016 (Fla. 5th DCA 1987). That court believed that Whitehead held the habitual offender statute was no longer viable as it had been repealed by implication.
The Winters court certified the following question to the Supreme Court of Florida, and we join with them in certifying that question as one of great public importance:
IS THE HABITUAL OFFENDER STATUTE STILL AN EFFECTIVE BASIS ON WHICH TO EXCEED THE STATUTORY MAXIMUM AS LONG AS THE SENTENCE IMPOSED DOES NOT EXCEED THE GUIDELINES RECOMMENDATION?
Accordingly, we affirm the judgment of conviction and sentence appealed from in this case.
HERSEY, C.J., and DOWNEY and GUNTHER, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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McMILLAN v. State, 516 So. 2d 1064 (Fla. 4th DCA 1987)…t to resort to the habitual offender statute to enhance a defendant’s sentence beyond the statutory maximum, where the sentence does not exceed the recommended guidelines range. See Condiles v. State, 512 So. 2d 331 (Fla.3d DCA 1987); King v. State, 511 So. 2d 1131 (Fla.4th DCA 1987); Hoefert v. State, 509 So. 2d 1090 (Fla.2d DCA 1987); Smith v. Wainwright, 508 So. 2d 768 (Fla.2d DCA 1987); Winters v. State, 500 So. 2d 303 (Fla.1st DCA 1986). Here the sentence imposed exceeds both the statutory maximum penalty…
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Inscho v. State, 521 So. 2d 164 (Fla. 5th DCA 1988)…796 (Fla. 4th DCA 1987); Bellinger v. State, 513 So. 2d 732 (Fla. 3d DCA 1987); Sims v. State, 513 So. 2d 671 (Fla. 2d DCA 1987); Reid v. State, 512 So. 2d 1161 (Fla. 3d DCA 1987); Condiles v. State, 512 So. 2d 331 (Fla. 3d DCA 1987); King v. State, 511 So. 2d 1131 (Fla. 4th DCA 1987); Hall v. State, 511 So. 2d 1038 (Fla. 1st DCA 1987); Hoefert v. State, 509 So. 2d 1090 (Fla. 2d DCA 1987); Smith v. Wainwright, 508 So. 2d 768 (Fla. 2d DCA 1987); Washington v. State, 508 So. 2d 565 (Fla. 2d DCA 1987); Hester v.…
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Lewis v. State, 514 So. 2d 389 (Fla. 4th DCA 1987)…fender statute to enhance his sentence, relying upon Whitehead v. State, 498 So. 2d 863 (Fla.1986). We have, however, rejected his contention that Whitehead held the habitual offender statute no longer viable in our recent decision in King v. State, 511 So. 2d 1131 (Fla. 4th DCA 1987). Having found no demonstration of reversible error, we affirm the judgment and sentence appealed from. DOWNEY, ANSTEAD and DELL, JJ., concur. ON MOTION TO CERTIFY ORDERED that Appellant’s October 15, 1987 motion to certify qu…
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)
- Hall v. State, 511 So. 2d 1038 (Fla. 1st DCA 1987)
- Myers v. State, 499 So. 2d 895 (Fla. 1st DCA 1986)
- Hoefert v. State, 509 So. 2d 1090 (Fla. 2d DCA 1987)
- Winters v. State, 500 So. 2d 303 (Fla. 1st DCA 1986)
- Therion Frierson v. State, 511 So. 2d 1016 (Fla. 5th DCA 1987)
- Smith v. Louie L. Wainwright, 508 So. 2d 768 (Fla. 2d DCA 1987)