LARRY MCMILLAN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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McMILLAN was convicted of grand theft and sentenced as a habitual offender to ten years imprisonment, exceeding both the statutory maximum of five years and the guideline recommendation of thirty months. The Fourth District affirmed the sentence, holding that the habitual offender statute validly permits enhancement beyond the statutory maximum when the trial court provides valid grounds for departure.
The court held that the habitual offender statute validly permits a trial court to enhance a defendant's sentence beyond the statutory maximum where the trial court provides valid grounds for departure such as a continuing pattern of criminal activity demonstrating the futility of rehabilitation or perpetration of offenses shortly after release from prison.
[1] A continuing and persistent pattern of criminal activity demonstrating the futility of rehabilitation is a valid basis for departing from sentencing guidelines.
[2] Perpetrating offenses shortly after release from prison is a valid basis for departing from sentencing guidelines.
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Join FLexlaw to unlock all legal intelligence“The trial court aggravated the defendant's sentence based on two grounds: (1) a continuing and persistent pattern of criminal activity demonstrating the futility of rehabilitation, and (2) the perpetration of the offenses shortly after the defendant's release from prison. These reasons are a valid basis for departure.”
Establishes what constitutes valid grounds for sentencing departure under Florida law.
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Join FLexlaw to unlock all legal intelligenceMcMILLAN was convicted of grand theft, a third-degree felony with a maximum statutory penalty of five years. He was sentenced as a habitual offender u…
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STONE, Judge.
The defendant was convicted of grand theft. The maximum statutory penalty for this third degree felony is five years. § 775.082(3)(d), Fla. Stat. He was sentenced as a habitual offender under section 775.084(4)(a)3, Florida Statutes, to ten years incarceration, the maximum period permitted under that statute. The guidelines scoresheet provided for a maximum sentence of thirty months. The trial court aggravated the defendant’s sentence based on two grounds: (1) a continuing and persistent pattern of criminal activity demonstrating the futility of rehabilitation, and (2) the perpetration of the offenses shortly after the defendant’s release from prison. These reasons are a valid basis for departure. See Williams v. State, 504 So. 2d 392 (Fla.1987); Brockington v. State, 506 So. 2d 495 (Fla.5th DCA 1987); Shelton v. State, 510 So. 2d 1068 (Fla.2d DCA 1987); Harmon v. State, 506 So. 2d 500 (Fla.1st DCA 1987). The crime in this instance occurred shortly after the defendant’s release from his latest commitment to prison. His most recent conviction was for sexual battery. He twice previously has been convicted of burglary of a dwelling involving an attempted sexual battery.
Appellant contends that his sentence is invalid under Whitehead v. State, 498 So. 2d 863 (Fla.1986). With the exception of the Fifth District, the appellate courts in this state have held that it is proper for the trial court 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 and the presumptive guidelines sentence.
The validity of such a sentence was recognized in Hall v. State, 511 So. 2d 1038 (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.
We certify the following question as one of great public importance: DOES WHITEHEAD V. STATE PRECLUDE APPLICATION OF THE HABITUAL OFFENDER STATUTE TO A SENTENCE IN EXCESS OF THE SENTENCING GUIDELINES WHERE THE TRIAL COURT STATES VALID GROUNDS FOR DEPARTURE OTHER THAN THE GROUNDS DISAPPROVED IN WHITEHEAD?
GLICKSTEIN and DELL, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Lucio John Salas v. State, 544 So. 2d 1040 (Fla. 4th DCA 1989)…d 1285 (Fla. 4th DCA), review denied, 488 So. 2d 67 (Fla.1986). We further hold that appellant’s failure to rehabilitate himself constitutes a valid reason for departure. See Robinson v. State, 530 So. 2d 1085 (Fla. 4th DCA 1988); McMillan v. State, 516 So. 2d 1064 (Fla. 4th DCA 1987), review denied, 525 So. 2d 879 (Fla.1988); Allen v. State, 522 So. 2d 850 (Fla. 4th DCA), review denied, 518 So. 2d 1273 (Fla.1987); and Leath v. State, 487 So. 2d 384 (Fla. 4th DCA 1986). We acknowledge that these decisions conf…
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Robinson v. State, 530 So. 2d 1085 (Fla. 4th DCA 1988)…depart because it was not previously factored into the presumptive sentence. See, e.g., (Jessie) Williams v. State, 504 So. 2d 392 (Fla.1987); Allen v. State, 522 So. 2d 850 (Fla. 4th DCA), rev. denied, 518 So. 2d 1273 (Fla.1987); McMillan v. State, 516 So. 2d 1064 (Fla. 4th DCA 1987), rev. denied, 525 So. 2d 879 (Fla.1988); Leath v. State, 487 So. 2d 384 (Fla. 4th DCA 1986); Pullens v. State, 516 So. 2d 34 (Fla. 2d DCA 1987); Ashley v. State, 510 So. 2d 970 (Fla. 5th DCA), rev. denied, 519 So. 2d 986 (Fla.198…
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Inscho v. State, 521 So. 2d 164 (Fla. 5th DCA 1988)…arting from the recommended guidelines sentence, nevertheless, that statute is viable to extend the general statutory máximums contained in section 775.082, Florida Statutes. See McGriff v. State, 517 So. 2d 94 (Fla. 3d DCA 1987); McMillan v. State, 516 So. 2d 1064 (Fla. 4th DCA 1987); Wooten v. State, 515 So. 2d 331 (Fla. 3d DCA 1987); Johnson v. State, 513 So. 2d 1388 (Fla. 3d DCA 1987); Priester v. State, 513 So. 2d 796 (Fla. 4th DCA 1987); Bellinger v. State, 513 So. 2d 732 (Fla. 3d DCA 1987); Sims v. Stat…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited (14 total)
- Whitehead v. State, 498 So. 2d 863 (Fla. 1986)
- Williams v. State, 504 So. 2d 392 (Fla. 1987)
- Hall v. State, 511 So. 2d 1038 (Fla. 1st DCA 1987)
- Hoefert v. State, 509 So. 2d 1090 (Fla. 2d DCA 1987)
- Winters v. State, 500 So. 2d 303 (Fla. 1st DCA 1986)
- Hester v. State, 503 So. 2d 1342 (Fla. 1st DCA 1987)
- State v. Carrillo, 506 So. 2d 495 (Fla. 5th DCA 1987)
- Smith v. Louie L. Wainwright, 508 So. 2d 768 (Fla. 2d DCA 1987)
- Brockington v. State, 506 So. 2d 495 (Fla. 5th DCA 1987)
- King v. State, 511 So. 2d 1131 (Fla. 4th DCA 1987)