DAVID E. KING, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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David King appeals his armed robbery sentence, arguing the trial court improperly departed from sentencing guidelines. The court reverses and remands, holding that when reasons for departure are invalidated by the Florida Supreme Court, the trial court cannot provide new reasons on remand but must sentence within the presumptive guidelines range.
The trial court may not enunciate entirely new reasons for departure at resentencing when the original reasons have been invalidated by the Supreme Court; instead, the defendant must be sentenced within the presumptive guidelines range.
[1] A trial court may not enunciate entirely new reasons for departure from sentencing guidelines at resentencing when all original reasons for departure are found invalid on…
[2] Upon remand for resentencing after invalidation of departure reasons, a defendant must be sentenced within the presumptive guidelines range.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“section 775.084 cannot operate as an alternative to guidelines sentencing ... nor can the habitual offender statute remain viable as a reason for departure”
The Florida Supreme Court's holding that invalidated the original reason for King's departure sentence
Previewing 1 of 2 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceKing was convicted by jury of three counts of armed robbery. At sentencing, the trial court departed from presumptive guidelines solely based on findi…
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HALL, Judge.
David E. King appeals from his judgment and sentence for armed robbery. He argues that the trial court erred in exceeding the presumptive guidelines sentence without clear and convincing reasons. We reverse and remand for resentencing within the guidelines.
The appellant was tried by jury and found guilty of three counts of armed robbery. Thereafter, at the sentencing hearing the trial court found the appellant to be a habitual offender and departed from the presumptive guidelines sentence solely on that basis.
The appellant appealed from that departure sentence and this court affirmed the trial court’s decision to depart but certified as a question of great public importance whether the appellant’s departure sentence could be justified by his habitual offender status. King v. State, 494 So. 2d 291 (Fla. 2d DCA 1986). The supreme court answered that question in the negative stating: “section 775.084 cannot operate as an alternative to guidelines sentencing ... nor can the habitual offender statute remain viable as a reason for departure_” The supreme court remanded with directions that the case be returned to the trial court for resentencing in accordance with its opinion. King v. State, 502 So. 2d 1243 (Fla.1987).
Upon resentencing, the trial court again departed from the sentencing guidelines and gave four new reasons for departure. The appellant argues that the trial court’s reasons for departure at resentencing are invalid. We need not address that argument in view of Shull v. Dugger, 515 So. 2d 748 (Fla.1987).
In Shull the supreme court held that when all the reasons stated by the trial court to justify departure are found to be invalid on appeal, the trial court may not enunciate entirely new reasons for departure at resentencing, but upon remand must sentence the defendant within the presumptive guidelines range. The court declined to carve out an exception for cases in which the reasons given for departure were valid at the time of the original sentencing according to appellate decisions but were later invalidated by the supreme court.
We therefore reverse the appellant’s sentence and remand for sentencing within the presumptive guidelines range.
Reversed and remanded.
SCHOONOVER, A.C.J., and FRANK, J., concur.
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Citator
Cited By
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Dean v. State, 523 So. 2d 165 (Fla. 1st DCA 1988)…l, supra, the Florida Supreme Court held that a trial court cannot enunciate any new reasons for departure after an appellate court reverses reasons given for the original departure. Accord Brumley v. State, 520 So. 2d 275 (Fla.1988); King v. State, 520 So. 2d 310 (Fla. 2d DCA 1988). In the instant case, the trial court based appellant’s original departure sentence solely upon the habitual offender statute, Section 775.084, Florida Statutes, which is prohibited by Whitehead v. State, 498 So. 2d 863 (Fla.1986)…
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Patten v. State, 531 So. 2d 203 (Fla. 2d DCA 1988)…75 (Fla.1988); Velazguez-Velazguez v. State, 523 So. 2d 774 (Fla. 3d DCA 1988); Sarria v. State, 523 So. 2d 727 (Fla. 3d DCA 1988); Dean v. State, 523 So. 2d 165 (Fla. 1st DCA 1988); Harris v. State, 520 So. 2d 688 (Fla. 3d DCA 1988); King v. State, 520 So. 2d 310 (Fla. 2d DCA 1988); Matire v. State, 520 So. 2d 292 (Fla. 4th DCA 1988). The problem with that broad general statement of the Shull rule is that it does not contemplate the time sequences of events and circumstances of this case or those illustrate…
Authorities Cited
- Shull v. Dugger, 515 So. 2d 748 (Fla. 1987)
- King v. State, 494 So. 2d 291 (Fla. 2d DCA 1986)
- King v. State, 502 So. 2d 1243 (Fla. 1987)