JOHNNIE LEE JONES, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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A trial court cannot impose a sentence exceeding the recommended guidelines range by asserting new reasons for departure after the original departure sentence was reversed on appeal.
Appellant was convicted and the trial court departed from sentencing guidelines based on habitual offender status. This court reversed that departure.…
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HERSEY, Chief Judge.
Appellant was convicted of third degree murder, grand theft and leaving the scene of an accident involving death or injury. The trial court deviated from the guidelines on the basis that appellant was a habitual offender. This court reversed the departure sentence in Jones v. State, 502 So. 2d 1375 (Fla. 4th DCA 1987), relying on State v. Whitehead, 498 So. 2d 863 (Fla.1986).
On remand the trial court found that the recommended guidelines range was three to seven years. The court then used three previously unarticulated reasons as grounds for aggravating the sentence to twenty-five years.
Because the sole reason initially given for departure from the guidelines, habitual offender status, was found invalid on appeal, the trial court cannot, upon resentencing, exceed the recommended sentence by ascribing new reasons for departure. See Shull v. Dugger, 515 So. 2d 748 (Fla.1987).
Shull holds that a trial court may not enunciate new reasons for a departure sentence after the reasons given for the original departure sentence have been reversed by an appellate court. This is precisely the situation involved in the instant case except that the trial court called its re-departure an “aggravation” of the presumptive sentence. Whether called “departure” or “aggravation,” the result is the same and, under Shull, is unacceptable.
REVERSED AND REMANDED FOR RESENTENCING WITHIN THE GUIDELINES.
LETTS and WALDEN, JJ., concur.
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Jones v. State, 559 So. 2d 204 (Fla. 1990)…idelines, habitual offender status, was found invalid on appeal, the trial court cannot, upon re-sentencing, exceed the recommended sentence by ascribing the new reasons for departure. See Shull v. Dugger, 515 So. 2d 748 (Fla.1987). Jones v. State, 526 So. 2d 173, 174 (Fla. 4th DCA 1988) [Jones II]. The mandate for Jones II was issued on July 8, 1988, and a third sentencing was held on August 11, 1988. The trial judge reimposed a fifty-year sentence, based upon Jones’ habitual offender status and the prior…
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Jones v. State, 540 So. 2d 245 (Fla. 4th DCA 1989)…. State, 502 So. 2d 1375 (Fla. 4th DCA 1987). The trial court again imposed an enhanced sentence setting forth reasons for its upward departure from the sentencing guidelines. This court again reversed and remanded for resentencing. Jones v. State, 526 So. 2d 173 (Fla. 4th DCA 1988). In that opinion we did not address the adequacy of the reasons for departure. We relied instead upon the rationale of Shull v. Dugger, 515 So. 2d 748 (Fla.1987). That case held that upon resentencing after reversal of a departur…
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Jones v. State, 590 So. 2d 1061 (Fla. 4th DCA 1991)…tten reasons for departing from the recommended range and sentenced appellant to 25 years. No mention of restitution was made. That sentence was also appealed and reversed based on Shull v. Dugger, 515 So. 2d 748 (Fla. 4th DCA 1988). Jones v. State, 526 So. 2d 173 (Fla. 4th DCA 1988) (Jones II). On the third resentencing in August of 1988, restitution was not mentioned, and the court imposed a sentence of 50 years as a habitual offender. This court upheld the sentence. Jones v. State, 540 So. 2d 245 (Fla. 4t…
Authorities Cited
- Whitehead v. State, 498 So. 2d 863 (Fla. 1986)
- Shull v. Dugger, 515 So. 2d 748 (Fla. 1987)
- Jones v. State, 502 So. 2d 1375 (Fla. 4th DCA 1987)