ROY BUTLER, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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PER CURIAM.
As the parties agree, four of the five grounds asserted by the trial judge for the upward departure sentence imposed below are invalid. See Hester v. State, 520 So. 2d 273 (Fla.1988); McGriff v. State, 528 So. 2d 396 (Fla. 3d DCA 1988), approved, 537 So. 2d 107 (Fla.1989); Solomon v. State, 528 So. 2d 1367 (Fla. 3d DCA 1988).
Under McGriff v. State, 537 So. 2d 107 (Fla.1989), since the crime involved occurred prior to the enactment of section 921.001(5), Florida Statutes (1987), the cause is governed by the rule of Albritton v. State, 476 So. 2d 158 (Fla.1985), that the trial court must now determine whether to depart on the basis of the one legally sufficient ground— the temporal proximity between the defendant’s release from prison and the instant offense. See State v. Jones, 530 So. 2d 53 (Fla.1988).
The cause is accordingly remanded for resentencing.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Lago v. State, 582 So. 2d 118 (Fla. 3d DCA 1991)…nce was imposed, there were sound reasons to believe that recent release from incarceration was an approved independent reason for departure. See Gibson v. State, 553 So. 2d 701 (Fla.1989); Jones v. State, 553 So. 2d 702 (Fla.1989); Butler v. State, 545 So. 2d 447 (Fla. 3d DCA 1989). But see McKinney v. State, 559 So. 2d 621 (Fla. 3d DCA 1990); Chanquet v. State, 570 So. 2d 962 (Fla. 3d DCA 1990). The recent decision in Smith v. State, 570 So. 2d 1315 (Fla.1991), has at a minimum invalidated recent release fr…
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Butler v. State, 593 So. 2d 569 (Fla. 3d DCA 1992)…minal conduct. Although, in a prior appeal in this case, we held that such temporal proximity is, without more, a valid reason in itself for departure from the sentencing guidelines and such announced rule is the law of this case, Butler v. State, 545 So. 2d 447 (Fla. 3d DCA 1989), it would be a manifest injustice to follow such rule in view of the contrary, intervening decision of the Florida Supreme Court in Smith; such manifest injustice constitutes an exception to the law of the case doctrine. See Moral…
Authorities Cited
- City OF Atl. Beach v. Bull, 476 So. 2d 158 (Fla. 1985)
- Albritton v. State, 476 So. 2d 158 (Fla. 1985)
- State v. Cledius Orlando Jones, 530 So. 2d 53 (Fla. 1988)
- State v. McGRIFF, 537 So. 2d 107 (Fla. 1989)
- Hester v. State, 520 So. 2d 273 (Fla. 1988)
- McGRIFF v. State, 528 So. 2d 396 (Fla. 3d DCA 1988)
- Solomon v. State, 528 So. 2d 1367 (Fla. 3d DCA 1988)