LARRY BANKS, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Larry Banks appeals his cocaine possession with intent to sell conviction and sentence. The court vacates the sentence and remands for resentencing because the trial court impermissibly departed from sentencing guidelines, failed to make required statutory findings for habitual offender status, and incorrectly scored a prior conviction that occurred after the primary offense.
The court held that the enhanced habitual offender sentence violated sentencing guidelines because the court did not provide reasons for the departure; the trial court erred in finding habitual offender status without making requisite statutory findings; and the trial court improperly scored a prior conviction committed after the primary offense.
[1] A trial court cannot impose an enhanced sentence as an habitual offender without providing specific reasons for the departure from the recommended guidelines sentence.
[2] A trial court must make the requisite statutory findings before determining that a defendant is an habitual offender.
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“defendant's status as an habitual offender [does] not justify a departure from the recommended guidelines sentence.”
Establishes that habitual offender designation alone cannot support an enhanced sentence above guideline range
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Join FLexlaw to unlock all legal intelligenceBanks was convicted of possession of cocaine with intent to sell. His guideline sentence range was 2.5 to 3.5 years in prison. The trial court sentenc…
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PER CURIAM.
Defendant Larry Banks appeals a sentence the court imposed after Banks was convicted of possession of cocaine with intent to sell. We vacate the sentence and remand for resentencing. Several reasons compel our decision.
First, the court erred in imposing an enhanced sentence pursuant to section 775.-084, Florida Statutes (1987).1 Defendant’s guideline sentence was 2lh to 3½ years in prison. The trial court sentenced defendant as an habitual offender to five years imprisonment, but did not provide reasons for the departure sentence. “[Djefendant’s status as an habitual offender [does] not justify a departure from the recommended guidelines sentence.” Winters v. State, 522 So. 2d 816, 817 (Fla.1988); State v. Brown, 530 So. 2d 51 (Fla.1988); Whitehead v. State, 498 So. 2d 863 (Fla.1986). Thus, the sentence is an impermissible departure from the guidelines. Brown; Whitehead; Adams v. State, 559 So. 2d 1293 (Fla. 3d DCA 1990).
Second, the trial court erred in finding that defendant is an habitual offender without making the requisite statutory findings set forth in section 775.084. Bohannon v. State, 546 So. 2d 1081 (Fla. 3d DCA 1989), review denied, 557 So. 2d 35 (Fla.1990).
Finally, the state correctly concedes that the trial court improperly scored as a prior conviction an offense which was committed after the primary offense. Thorp v. State, 555 So. 2d 362 (Fla.1990). On remand, the court may determine that defendant is an habitual offender upon making the necessary findings.2 See Sims v. State, 574 So. 2d 312 (Fla. 3d DCA 1991). However, the trial court must recalculate the scoresheet and impose a guideline sentence. Pope v. State, 561 So. 2d 554 (Fla.1990); Shull v. Dugger, 515 So. 2d 748 (Fla.1987).
Sentence vacated and remanded.
. Defendant committed this offense prior to the effective date of the 1988 amendment to section 775.084, 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).
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Perkowski v. State, 920 So. 2d 836 (Fla. 4th DCA 2006)…nviction, prior to the commission of the primary offense.”1 It is clear based on the plain language of the rule that a sentencing court may not score as a prior conviction an offense which was committed after the primary offense. See Banks v. State, 575 So. 2d 755, 755 (Fla. 3d DCA 1991) (“[T]he state correctly concedes that the trial court improperly scored as a prior conviction an offense which was committed after the primary offense.”). Here, the trial court scored, as prior record, appellant’s 1990 convic…
Authorities Cited
- Pope v. State, 561 So. 2d 554 (Fla. 1990)
- Whitehead v. State, 498 So. 2d 863 (Fla. 1986)
- Shull v. Dugger, 515 So. 2d 748 (Fla. 1987)
- State v. Brown, 530 So. 2d 51 (Fla. 1988)
- Winters v. State, 522 So. 2d 816 (Fla. 1988)
- Adams v. State, 559 So. 2d 1293 (Fla. 3d DCA 1990)
- Thorp v. State, 555 So. 2d 362 (Fla. 1990)
- Bohannon v. State, 546 So. 2d 1081 (Fla. 3d DCA 1989)
- State v. Padron, 571 So. 2d 102 (Fla. 3d DCA 1990)
- Sims v. State, 574 So. 2d 312 (Fla. 3d DCA 1991)