MICHAEL LOOMIS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that the sentence was not a departure sentence because it was within the presumptive guidelines and did not exceed the statutory maximum. However, the judgment form must be corrected to reflect the proper degree of the offense.
[1] A sentence is not a departure sentence if the term of imprisonment is within the presumptive guidelines range and the total sanction does not exceed the statutory maximum…
[2] A judgment form must be corrected to reflect the proper degree of the offense when the defendant pleaded guilty to a lesser offense than that reflected in the judgment.
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Join FLexlaw to unlock all legal intelligenceThe defendant pleaded guilty to second-degree robbery. The judgment and sentence form, however, erroneously reflected a conviction for a first-degree …
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DANIEL, Judge.
The defendant Michael Loomis appeals his judgment and sentence for robbery, a second degree felony punishable by up to 15 years imprisonment.1 The defendant’s recommended guidelines sentence was 3⅝⅛ to 4⅛ years incarceration. Loomis received a sentence of fifteen years, but after serving 4V2 years in the Department of Corrections, the balance of his sentence was suspended and he was placed on probation for a period of 10 years.
On appeal, the defendant argues that the sentence constitutes a departure sentence which is improper because there were no written reasons for departure. Since the term of imprisonment was within the pre sumptive guidelines range and the total sanction did not exceed the statutory maximum for the crime, the sentence did not constitute a departure sentence. See Johnson v. State, 529 So. 2d 1250 (Pla. 5th DCA 1988); McKee v. State, 528 So. 2d 417 (Fla. 5th DCA 1988).
The defendant also argues that the judgment erroneously reflects that he was convicted of a first degree felony rather than a second degree felony. The defendant was charged with robbery while wearing a mask in violation of sections 812.13 and 775.0845, Florida Statutes (1985). Under section 775.0845(4), a felony of the second degree is punishable as if it were a felony of the first degree if the offender was wearing a mask that concealed his identity while committing the offense. The defendant entered a plea of guilty to second degree robbery, a lessor included offense of robbery while wearing a mask. The judgment form, however, lists the mask statute and the degree of the crime as a first degree felony. Since the defendant pleaded to a second degree robbery, the judgment form should be corrected to reflect the proper degree of the offense and the reference to section 775.0845 (erroneously designated as 777.0845 on the judgment form) should be deleted.
AFFIRMED as modified.
DAUKSCH and ORFINGER, JJ., concur. . §§ 812.13(2)(c); 775.082(3)(c), Fla. Stat. (1985).
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Weiner v. State, 562 So. 2d 392 (Fla. 5th DCA 1990)…do with the length of probation given as an alternative to prison. Petrillo v. State, 554 So. 2d 1227. The period of probation, when combined with the period of incarceration, is limited only by the statutory maximum for the crime. Loomis v. State, 531 So. 2d 423 (Fla. 5th DCA 1988); O’Brien v. State, 478 So. 2d 497 (Fla. 5th DCA 1985); Bell v. State, 479 So. 2d 309 (Fla. 5th DCA 1985). The statutory maximum for a second-degree felony is 15 years. § 775.082(3)(c), Fla.Stat. (1987). Since Weiner chose to comm…
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State v. Lindsey, 560 So. 2d 406 (Fla. 5th DCA 1990)…g guidelines to impose a combination of incarceration and probation so long as the incarcerative portion is within the recommended range, and the combined terms of incarceration and probation do not exceed the statutory maximum. See Loomis v. State, 531 So. 2d 423 (Fla. 5th DCA 1988). Since the incarcerative portion of the sentence was 14 years, it did not exceed the recommended guideline sentence of 12 to 17 years. The combined terms of incarceration and probation do not exceed the statutory maximum of life.…
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Harris v. State, 564 So. 2d 283 (Fla. 5th DCA 1990)…CA 1990); Garcia v. State, 539 So. 2d 23 (Fla.2d DCA 1989). We therefore reverse the sentences and remand for resentencing. Split sentences may be imposed within the second cell if probation is substituted for community control. See Loomis v. State, 531 So. 2d 423 (Fla.5th DCA 1988). SENTENCED VACATED; CAUSE REMANDED FOR RESENTENCING. DAUKSCH and HARRIS, JJ., concur.…
Authorities Cited
- McKEE v. State, 528 So. 2d 417 (Fla. 5th DCA 1988)
- Johnson v. State, 529 So. 2d 1250 (Fla. 5th DCA 1988)