MICHAEL CARROLL, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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A habitual offender sentence is improper if the relevant statutory provision was not in effect at the time of the offense.
Michael Carroll was convicted of theft and sentenced as a habitual offender. The habitual offender statute in effect at the time of his offense did no…
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FRANK, RICHARD H., Associate Judge.
Michael Carroll was charged with the taking of a diamond ring valued in excess of $300.00. The jury found him guilty. At sentencing, the trial court declared him a habitual offender, imposed ten years imprisonment and ordered restitution in the amount of $6,000.00. The maximum term of imprisonment for the crime Carroll committed was five years and the guidelines sentence ranged from twelve to thirty months. At the moment when Carroll stole the ring, the current version of the Habitual Offender Statute, section 775.084(4)(e), Florida Statutes (1988 Supp.), was not in effect. Thus, consistent with Whitehead v. State, 498 So. 2d 863 (Fla.1986), the trial court’s departure from the guidelines based upon a determination that Carroll was a habitual offender was erroneous.
We reject the state’s contention that the trial court’s reliance upon Carroll's “contrary and persistent pattern of criminal activity demonstrating the futility of rehabilitation” warrants a departure sentence. The factors underlying that conclusion became a part of the guidelines’ calculation and cannot be relied upon for departure. State v. Mischler, 488 So. 2d 523 (Fla.1986).
Accordingly, we reverse and vacate Carroll’s sentence and remand this matter for resentencing within the guidelines. Shull v. Dugger, 515 So. 2d 748 (Fla.1987).
ANSTEAD and GUNTHER, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Freeman Brintley v. Singletary, 605 So. 2d 1303 (Fla. 2d DCA 1992)…committed in August, 1988, or before the effective date of the revised habitual offender statute. Accordingly, it was error to apply that version of the statute to his case. Strickland v. State, 596 So. 2d 1155 (Fla. 2d DCA 1992); Carroll v. State, 567 So. 2d 954 (Fla. 4th DCA 1990). Under the law in effect at the time of Brintley’s offense it would have been improper to “ha-bitualize” him since such enhancement was not necessary to harmonize the length of sentence with the guideline recommendation. Winters…
Authorities Cited
- Whitehead v. State, 498 So. 2d 863 (Fla. 1986)
- State v. Mischler, 488 So. 2d 523 (Fla. 1986)
- Shull v. Dugger, 515 So. 2d 748 (Fla. 1987)