JOHNNIE LEE JONES, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Jones appeals his third sentencing following two prior reversals for sentencing guideline violations. The court holds that an initial enhanced sentence under the habitual felony offender statute does not bar subsequent upward departure from sentencing guidelines based on written reasons, and affirms the third sentencing as properly reasoned.
The court holds that the initial sentencing under the habitual felony offender statute does not bar subsequent upward departure from sentencing guidelines. The trial court did not intend the initial sentencing as a departure sentence with reference to guidelines, and the stated reasons for the third sentencing constitute a valid basis for upward departure.
[1] A trial court may depart from sentencing guidelines upon resentencing after a prior departure sentence was reversed due to inadequacy of reasons, provided the initial sen…
[2] Where a trial court imposes a sentence that is later determined to be a departure from presumptive guidelines without providing reasons, the court must be given an opport…
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Join FLexlaw to unlock all legal intelligence“the trial court may not again depart from the guidelines assigning new or different reasons for the subsequent departure”
States the holding from Shull v. Dugger regarding limitations on resentencing after reversal for inadequate departure reasons
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Join FLexlaw to unlock all legal intelligenceJones was convicted in 1985 of murder in the third degree, grand theft, and leaving the scene of an accident involving death. He was initially sentenc…
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HERSEY, Chief Judge.
As a result of being convicted in 1985 of murder in the third degree, grand theft and leaving the scene of an accident involving death, the appellant, Johnnie Lee Jones, was sentenced to a fifty-year term of imprisonment as an habitual offender. On appeal to this court, the sentence was vacated as violative of Whitehead v. State, 498 So. 2d 863 (Fla.1986), and the case was remanded for resentencing. Jones v. 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 departure sentence grounded upon inadequacy of the initial basis for an upward departure from the sentencing guidelines the trial court may not again depart from the guidelines assigning new or different reasons for the subsequent departure.
The third sentencing of appellant again resulted in an upward departure from the sentencing guidelines. That sentence is the subject of the present appeal.
The issue is whether the initial sentencing of appellant, resulting in a sentence enhanced by application of the habitual felony offender statute, constitutes a bar to subsequent enhancement of his sentence based upon written reasons supporting an upward departure from the sentencing guidelines recommended range.
We hold that it does not. Our holding is based upon a finding from examination of the record that the initial sentencing was not intended by the trial court nor considered by the parties as a departure sentence with reference to the guidelines. Our legal conclusion is buttressed by a line of cases, spawned by the second district in Waldron v. State, 529 So. 2d 772, 774 (Fla. 2d DCA 1988), which cases support a holding that “where a trial court does not provide reasons for departure and the sentence imposed is later determined to be a departure, the trial court must be given an opportunity to depart from the presumptive guidelines sentence after remand for resentencing.” See Brown v. State, 535 So. 2d 332 (Fla. 1st DCA 1988); Roberts v. State, 534 So. 2d 1225 (Fla. 1st DCA 1988); Dyer v. State, 534 So. 2d 843 (Fla. 5th DCA 1988); State v. Wayda, 533 So. 2d 939 (Fla. 3d DCA 1988).
Finding that the stated reasons constitute a valid basis for an upward departure from the sentencing guidelines recommended range, we affirm.
AFFIRMED.
LETTS and WALDEN, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Doyal Powell Roberts v. State, 547 So. 2d 129 (Fla. 1989)…her a departure from the guidelines is appropriate when the corrected guidelines scoresheet is before him on remand. Accordingly, we approve the decision of the First District Court of Appeal in the instant case and the decisions in Jones v. State, 540 So. 2d 245 (Fla. 4th DCA 1989); Brown v. State, 535 So. 2d 332 (Fla. 1st DCA 1988); and Waldron v. State, 529 So. 2d 772 (Fla. 2d DCA 1988). We disapprove the decision of the Third District Court of Appeal in Harrison v. State, 523 So. 2d 726 (Fla. 3d DCA 1988…
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State v. Vanhorn, 561 So. 2d 584 (Fla. 1990)…eparture sentence is permissible on remand if the trial court erroneously believed it was imposing a sentence falling within the guidelines’ range while giving no reasons for what amounted to a de facto upward departure. Id. See also Jones v. State, 540 So. 2d 245 (Fla. 4th DCA 1989), approved in part and quashed in part, 559 So. 2d 204 (Fla.1990); Brown; Dyer; Waldron. Accordingly, the trial court properly considered the state’s request for a departure sentence in the remand at issue here. Vanhorn, however,…
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Jones v. State, 559 So. 2d 204 (Fla. 1990)…OVERTON, Justice. We have for review Jones v. State, 540 So. 2d 245 (Fla. 4th DCA 1989) [Jones III], in which the district court affirmed a departure sentence imposed on remand. The underlying issue concerns the authority of the sentencing judge, in a resentencing proceeding, to depart from the recommended guideline…
Previewing 3 of 5 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)
- Shull v. Dugger, 515 So. 2d 748 (Fla. 1987)
- Waldron v. State, 529 So. 2d 772 (Fla. 2d DCA 1988)
- Jones v. State, 502 So. 2d 1375 (Fla. 4th DCA 1987)
- State v. Johnson, 533 So. 2d 939 (Fla. 3d DCA 1988)
- State v. Wayda, 533 So. 2d 939 (Fla. 3d DCA 1988)
- Dyer v. State, 534 So. 2d 843 (Fla. 5th DCA 1988)
- Doyal Powell Roberts v. State, 534 So. 2d 1225 (Fla. 1st DCA 1988)
- Brown v. State, 535 So. 2d 332 (Fla. 1st DCA 1988)
- Jones v. State, 526 So. 2d 173 (Fla. 4th DCA 1988)