HARRY C. SELLERS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
Appellant Sellers was convicted of burglary of a conveyance and sentenced as a habitual offender to ten years in prison, a departure from the guidelines range of 5.5 to 7 years. The appellate court reversed the departure sentence, finding the trial court's grounds for departure—that appellant engaged in a life of crime and was not amenable to rehabilitation—were legally insufficient.
The departure sentence was improper and must be reversed. The trial court's justification based on prior criminal history was invalid because those offenses had already been scored in the guidelines calculation. Additionally, failure to rehabilitate cannot be used as a departure ground when based on a prior record already computed into the guidelines sentence.
[1] A prior criminal history already scored into a guidelines sentence cannot serve as a basis for departing from those guidelines.
[2] A determination that a defendant is not amenable to rehabilitation cannot justify a departure sentence when based upon a prior record already computed into the guidelines…
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“Several of the earlier offenses, however, were scored and hence, could not support departure from the guidelines.”
Establishes that prior offenses already factored into guidelines cannot be used as independent departure grounds
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceAppellant was convicted of burglary of a conveyance and sentenced to ten years in Florida State Prison as a habitual offender under section 775.084. T…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Departure Sentence cases and more on FLexlaw
FRANK, Judge.
The appellant, appearing pro se, challenges the judgment and departure sentence impt^d upon him following his conviction for burglary of a conveyance. He has raised four issues, we have considered each and find one meritorious.
The trial court sentenced the appellant as a habitual offender pursuant to section 775.084, Florida Statutes (1987). The sentence, ten years in Florida State Prison, was a departure from the recommended guidelines sentence of five and one-half to seven years.
In addition to making the findings essential to a habitual offender sentence, the trial court stated two grounds as justification for the departure sentence. The first is best summarized as a conclusion by the court that the appellant “has been engaged in a life of crime.” This determination was based, in part, on the appellant’s multi-crime history. Several of the earlier offenses, however, were scored and hence, could not support departure from the guidelines. Hendrix v. State, 475 So. 2d 1218 (Fla.1985).
The second departure ground was a determination that the appellant is “no longer amendable to rehabilitation.” This ground also fails; failure to rehabilitate is invalid when based upon a prior record which has been computed into the guidelines sentence. Tapia v. State, 509 So. 2d 354 (Fla. 2d DCA 1987).
Finally, at the time the appellant committed the offense, November 1987, sentencing pursuant to the habitual offender statute was available only in the circumstance where the guidelines sentence exceeded the maximum statutory penalty, Winters v. State, 522 So. 2d 816 (Fla.1988), Hoefert v. State, 509 So. 2d 1090 (Fla. 2d DCA 1987), disapproved on other ground, Parker v. State, 546 So. 2d 727 (Fla.1989), but it could not be used to exceed the recommended guidelines range.* Whitehead v. State, 498 So. 2d 863 (Fla.1986).
The appellant’s sentence is reversed and we remand for resentencing within the guidelines range. In all other aspects this matter is affirmed.
CAMPBELL, C.J., and SCHOONOVER, J., concur. *
Section 775.084 was amended effective October 1, 1988 to provide that the habitual offender statute exists independently from the guidelines and is available to trial courts for sentencing pursuant to its requirements. § 775.084, Fla. Stat. (1989).
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Louissaint v. State, 576 So. 2d 316 (Fla. 5th DCA 1990)…t committed the present offense while still on probation. Non-amenability to rehabilitation is not a valid reason for departure when the determination is based on a prior record which has been computed into the guideline sentence. Sellers v. State, 559 So. 2d 378 (Fla. 2d DCA 1990); Tapia v. State, 509 So. 2d 354 (Fla. 2d DCA 1987). Here, while the court did not determine non-amenability merely because the defendant committed three felonies in a short period of time (all scored), but rather emphasized that t…
-
Jones v. State, 583 So. 2d 387 (Fla. 1st DCA 1991)…iming of the instant offenses in relation to sentencing on previous drug offenses. We find all three reasons to be invalid. The first reason — unamenability to rehabilitation — has been found to be an invalid reason for departure. Sellers v. State, 559 So. 2d 378 (Fla. 2d DCA 1990); Ellis v. State, 559 So. 2d 292 (Fla. 5th DCA 1990); and Maddox v. State, 553 So. 2d 1380 (Fla. 5th DCA 1989). The second reason— disrespect or disregard for the law, standing alone — has also been found to be an invalid basis for…
-
Booker v. State, 578 So. 2d 818 (Fla. 4th DCA 1991)…deterrence based on the Defendant’s pri- or record, which includes a prior conviction for Sexual Battery. The second reason is invalid. See Tillman v. State, 525 So. 2d 862 (Fla.1988); Hendrix v. State, 475 So. 2d 1218 (Fla.1985); Sellers v. State, 559 So. 2d 378 (Fla. 2d DCA 1990). However, the first reason is valid, See Forney v. State, 567 So. 2d 60 (Fla. 4th DCA 1990); Barfield v. State, 564 So. 2d 616, 617 (Fla. 4th DCA 1990), and, standing alone, it is sufficient to justify the departure. Thus, we aff…
Previewing 3 of 8 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Hendrix v. State, 475 So. 2d 1218 (Fla. 1985)
- Whitehead v. State, 498 So. 2d 863 (Fla. 1986)
- Timmie Lewis Parker v. State, 546 So. 2d 727 (Fla. 1989)
- Winters v. State, 522 So. 2d 816 (Fla. 1988)
- Hoefert v. State, 509 So. 2d 1090 (Fla. 2d DCA 1987)
- Tapia v. State, 509 So. 2d 354 (Fla. 2d DCA 1987)