THE STATE OF FLORIDA, APPELLANT,
v.
ERNESTO PADRON, APPELLEE
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The court held that the trial court erred in imposing a downward departure sentence from the sentencing guidelines without record support, but correctly interpreted the habitual offender statute.
[1] A sentence of up to 30 years is permissible for a habitual offender convicted of a second-degree felony, with 30 years being the maximum, not mandatory, sentence.
[2] A court may decline to impose a habitual offender sentence if it determines that such a sentence is not necessary for the protection of the public.
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Join FLexlaw to unlock all legal intelligenceThe State appealed a 12-year sentence imposed on a defendant classified as a habitual offender, arguing it was an impermissible downward departure fro…
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LEVY, Judge.
The State appeals, claiming that the trial court was in error in sentencing the defendant to a 12-year prison sentence over the State’s objection, rather than sentencing the defendant to 30 years in prison which the State contends was the only sentence the court could impose on this defendant, who is an habitual offender. The State also contends that the 12-year sentence imposed by the trial court was an impermissible downward departure from the sentencing guidelines.
Regarding the habitual offender sentence issue, it is clear that, contrary to the State’s contention, the 30-year prison sentence that the State was seeking is not a mandatory type of sentence. See State v. Brown, 530 So. 2d 51 (Fla.1988). In fact, the language of Section 775.084(4)(a), Florida Statutes (1989) specifically provides that habitual offenders, when convicted of a second degree felony, shall be sentenced to “... a term of years not exceeding 30.” Accordingly, 30 years would be the maximum sentence that the trial court could impose, not the only sentence that the court could impose. Furthermore, Section 775.084(4)(c), Florida Statutes (1989) pro vides that “[i]f the court decides that imposition of sentence under this Section is not necessary for the protection of the public, sentence shall be imposed without regard to this Section”. Accordingly, the record reflects that the trial court was correct in connection with its interpretation of the habitual offender statute.
Turning to the issue regarding the downward departure from the sentencing guidelines, however, we reach a different result. As the appellee correctly concedes before this court, there is “no record support” for the reason given by the trial court for the downward departure sentence imposed. As a result thereof, the 12-year sentence imposed by the trial court must be reversed and this case remanded to the trial court for the purpose of allowing the appellee the option of either being sentenced to a sentence within the sentencing guidelines or, in the alternative, to withdraw his plea and to proceed to trial.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Smith v. State, 574 So. 2d 1195 (Fla. 3d DCA 1991)…t, that such a sentence is not mandatory. State v. Brown, 530 So. 2d 51, 53 (Fla.1988) (a fortiori holding that section 775.084(4)(a), providing that life sentence “shall” be imposed upon habitual felony offender, is not mandatory); State v. Padron, 571 So. 2d 102 (Fla. 3d DCA 1990) (same); McNair v. State, 563 So. 2d 804 (Fla. 3d DCA 1990) (same). But see Donald v. State, 562 So. 2d 792 (Fla. 1st DCA 1990) (opposite result as to § 775.084(4)(b); State v. Brown, 530 So. 2d 51, not cited). Various comments of…
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Miller v. State, 651 So. 2d 138 (Fla. 3d DCA 1995)…fender sentence should be imposed, quite apart from the statutory criteria for such sentences. See Burdick v. State, 594 So. 2d 267 (Fla.1992); Cotton v. State, 588 So. 2d 694 (Fla. 3d DCA 1991), approved, 595 So. 2d 957 (Fla.1992); State v. Padron, 571 So. 2d 102 (Fla. 3d DCA 1990); McNair v. State, 563 So. 2d 804 (Fla. 3d DCA 1990); see also Oyler v. Boles, 368 U.S. 448, 82 S.Ct. 501, 7 L.Ed.2d 446 (1962); Barber v. State, 564 So. 2d 1169 (Fla. 1st DCA), rev. denied, 576 So. 2d 284 (Fla.1990). This being so…
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Larry Banks v. State, 575 So. 2d 755 (Fla. 3d DCA 1991)…, Fla.Stat. (Supp.1988). Section 775.084, Fla.Stat. (1987) is applicable to this case. . Although the trial court may not impose an enhanced sentence, it is within its discretion to determine that defendant is an habitual offender. State v. Padron, 571 So. 2d 102 (Fla. 3d DCA 1990).…
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- State v. Brown, 530 So. 2d 51 (Fla. 1988)