JOSEPH W. ROBINSON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court affirmed the convictions but reversed the sentences, remanding for resentencing.
Appellant was convicted of robbery and burglary of a dwelling and sentenced to consecutive terms significantly above the guidelines. The trial judge d…
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PER CURIAM.
This cause is before us on appeal from a judgment and sentences after a jury trial in which the trial judge denied appellant’s amended motion for a new trial and sentenced appellant to consecutive terms of 25 years each for robbery and burglary of a dwelling. The recommended guidelines sentence was five and one-half to seven years. We affirm the convictions but reverse the sentences and remand for resentencing.
The trial judge denied appellant a new trial based on newly discovered evidence. The record shows that the trial judge did not believe the alleged new evidence would “probably” have changed the verdict as required by Rule 3.600(a)(3), Florida Rules of Criminal Procedure. We find no abuse of discretion in the trial court’s ruling. Jent v. State, 408 So. 2d 1024, 1031 (Fla.1981), cert. denied, 457 U.S. 1111, 102 S.Ct. 2916, 73 L.Ed.2d 1322 (1982). Therefore, the judgment is affirmed.
The trial court gave three written reasons for departure from the guidelines sentence, only one of which is not clear and convincing. The State concedes that appellant’s habitual offender status is not a valid reason for departure. Whitehead v. State, 498 So. 2d 863 (Fla.1986). Furthermore, the State agrees that the trial judge placed great weight on the finding of habitual offender in imposing the sentence outside the guidelines and did not state that he would depart from the guidelines for any one of the reasons given. Therefore, the sentences are reversed, and the case is remanded for resentencing. Albritton v. State, 476 So. 2d 158 (Fla.1985). The trial judge may, after reweighing the two valid departure factors, sentence appellant within the recommended range or, if he so chooses, again impose a sentence outside the guidelines.
Affirmed in part, reversed in part, and remanded for resentencing.
BOOTH, THOMPSON and WIGGINTON, JJ., concur.
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Gibbs v. State, 529 So. 2d 369 (Fla. 1st DCA 1988)…llant’s allegation that he was sentenced on June 12, 1987 is accurate, the lower court should have sentenced him under the 1986 amended version of § 27.3455, which deleted the community service alternative for indigent defendants. See Sims v. State, 520 So. 2d 675 (Fla. 5th DCA 1988); Hill v. State, 517 So. 2d 784 (Fla. 5th DCA 1988). We cannot review this motion, however, because the record on appeal does not contain the order placing appellant on community service or the order adjudging him indigent, and be…
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Hollis v. State, 525 So. 2d 498 (Fla. 5th DCA 1988)…rike the trial court’s imposition of community service in lieu of $200.00 in costs, pursuant to section 27.3455(1), Florida Statutes (1987). Before Hollis was sentenced, that portion of the statute was repealed by the legislature. See Sims v. State, 520 So. 2d 675 (Fla. 5th DCA 1988); Hill v. State, 517 So. 2d 784 (Fla. 5th DCA 1988); Hansley v. State, 514 So. 2d 1135 (Fla. 5th DCA 1987). AFFIRM SENTENCE AS MODIFIED. DAUKSCH and COBB, JJ., concur.…
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Phaneuf v. State, 655 So. 2d 1300 (Fla. 5th DCA 1995)…7.3455 authorizing community service in lieu of payment of costs was amended in 1986 to eliminate this alternative); Parks v. State, 595 So. 2d 1056 (Fla. 4th DCA 1992) (same); Bush v. State, 579 So. 2d 362 (Fla. 4th DCA 1991) (same); Sims v. State, 520 So. 2d 675 (Fla. 5th DCA 1988) (same); Hansley v. State, 514 So. 2d 1135 (Fla. 5th DCA 1987) (same); Rowe v. State, 558 So. 2d 174 (Fla. 5th DCA 1990) (state concedes court without authority to impose community service in lieu of costs under section 27.3455);…
Previewing 3 of 4 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)
- City OF Atl. Beach v. Bull, 476 So. 2d 158 (Fla. 1985)
- Albritton v. State, 476 So. 2d 158 (Fla. 1985)
- Jent v. State, 408 So. 2d 1024 (Fla. 1981)
- Brown v. Fed. Election Comm'n, 457 U.S. 1111 (U.S. 1982)
- Oregon v. Newman, 457 U.S. 1111 (U.S. 1982)