JERRY W. WYCHE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Appellant Wyche appealed his sentence as a habitual felony offender on ex post facto grounds and constitutional challenge, which were rejected. The court affirmed the habitual offender sentence but reversed certain departure sentences for probation revocations because the trial court improperly relied solely on habitual offender status to justify departures from sentencing guidelines.
The court affirmed the habitual felony offender sentence itself but reversed the two fifteen-year departure sentences because habitual offender status is not a valid reason to depart from sentencing guidelines. The ex post facto and constitutionality challenges were rejected based on prior established case law.
[1] A habitual felony offender statute may constitutionally apply to offenses committed prior to its enactment.
[2] A trial court may not depart from sentencing guidelines based solely on a defendant's status as a habitual felony offender.
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Join FLexlaw to unlock all legal intelligence“Wyche's status as a habitual felony offender was not a valid reason to depart from the guidelines.”
Establishes the central holding that habitual offender status cannot justify sentencing departures
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Join FLexlaw to unlock all legal intelligenceWyche was convicted of possession of cocaine in Case No. 89-828 and received an enhanced ten-year sentence as a habitual felony offender. The trial co…
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ERVIN, Judge.
Appellant, Jerry Wyche, appeals his sentence as a habitual felony offender on the ground that the trial judge based his finding of habitual-offender status on offenses Wyche committed prior to enactment of the habitual-offender statute, and that this violated the prohibition against ex post facto laws. Wyche also claims that Section 775.-084, Florida Statutes (Supp.1989), is unconstitutional. Wyche’s first argument was expressly rejected in Cross v. State, 96 Fla. 768, 119 So. 380 (Fla.1928), and his second argument was rejected in Pittman v. State, 570 So. 2d 1045 (Fla. 1st DCA 1990), and Barber v. State, 564 So. 2d 1169 (Fla. 1st DCA 1990), review dismissed, 576 So. 2d 284 (Fla.1990).
Consequently, we affirm Wyche’s habitual felony offender sentence.
We reverse, however, certain other departure sentences imposed for probation revocation because the court relied solely on Wyche’s status as a habitual felony offender to justify those departures.
Wyche was convicted of possession of cocaine in Case No. 89-828, and was given an enhanced ten-year sentence as a habitual felony offender. As a result of his conviction for such offense, the . trial court revoked six earlier sentences of probation. In so doing, the court prepared a guideline scoresheet listing Case No. 89-828 as the “primary offense,” and each of the remaining six cases as “additional offenses.” Appellant’s score was 143 points, which resulted in a recommended range of 3½ to 4½ years in prison. For two of the six earlier offenses, the court imposed two fifteen-year departure sentences to run concurrent with each other, but consecutive to the sentence imposed in Case No. 89-828. The only reason the trial court gave for exceeding the recommended guidelines sentence was Wyche’s status as a habitual felony offender. Wyche’s status as a habitual felony offender was not a valid reason to depart from the guidelines. Whitehead v. State, 498 So. 2d 863 (Fla.1987).
We therefore reverse the fifteen-year sentences.1 When all of the departure reasons given have been reversed on appeal, the trial court on remand is not authorized to articulate new reasons for departure. Shull v. Dugger, 515 So. 2d 748 (Fla.1987).
Therefore, on remand, the trial court must sentence Wyche within the guidelines recommendation. The court may, of course, utilize the one-cell bump-up provision for probation revocations, pursuant to Florida Rule of Criminal Procedure 3.701(d)14. The total of sentences imposed for all six offenses, however, may not exceed the guidelines range. Fla.R.Crim.P. 3.701(d)12.
In reversing the two fifteen-year sentences, we observe that the scoresheet is incorrect. A sentence imposed upon a defendant as a habitual felony offender is not subject to the sentencing guidelines; therefore, the court should not have listed Case No. 89-828 as the primary offense at conviction. Once Case No. 89-828 (a third-degree felony) is removed from the score-sheet as the primary offense, and either of Wyche’s two previous cocaine offenses (both second-degree felonies) is scored as the primary offense, Wyche’s score changes slightly, but apparently will still fall within the same presumptive range of 3⅛⅛ to 4¾⅛ years.
AFFIRMED in part, REVERSED in part, and REMANDED with directions to the trial court to remove Case No. 89-828 from the scoresheet as the primary offense, and to impose sentences as to the remaining offenses within the guidelines presumptive range.
NIMMONS and ZEHMER, JJ., concur. . Case Nos. 87-699 and 87-728.
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Ricardo v. State, 608 So. 2d 93 (Fla. 2d DCA 1992)…fendant a habitualized sentence on that offense, the court removes that offense from sentencing under the guidelines. King v. State, 597 So. 2d 309, 315 (Fla. 2d DCA 1992); Silliker v. State, 598 So. 2d 133 (Fla. 5th DCA 1992); Wyche v. [*95] State, 576 So. 2d 884, 886 (Fla. 1st DCA 1991). We hasten to add that while this reasoning prevents a court from using a habitualized offense as either the primary-offense at conviction or as an additional offense at conviction, the court may use a previous habitual offe…
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Cintron v. State, 583 So. 2d 410 (Fla. 4th DCA 1991)…a negotiated plea agreement between the parties to limit the sentence. Moreover, there was no departure originally and the trial court cannot now undertake to depart citing new reasons. See Shull v. Dugger, 515 So. 2d 748 (Fla.1987); Wyche v. State, 576 So. 2d 884 (Fla. 1st DCA 1991); Owens v. State, 563 So. 2d 180 (Fla. 1st DCA 1990). REVERSED AND REMANDED. GLICKSTEIN, C.J., ANSTEAD, J., and JAMES H. WALDEN, Senior Judge, concur.…
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Wyche v. State, 624 So. 2d 830 (Fla. 1st DCA 1993)…an allegedly illegal sentence pursuant to Florida Rule of Criminal Procedure 3.800(a). Appellant sought correction of certain court case numbers to coincide with the sentence imposed after the cause was remanded for resentencing. See Wyche v. State, 576 So. 2d 884 (Fla. 1st DCA 1991) (Wyche I). In addition, the factual allegations of the motion indicate the existence of scrivener’s errors on the judgment and sentence forms. We reverse and remand for correction of the judgment and sentencing documents. In the…
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
- Whitehead v. State, 498 So. 2d 863 (Fla. 1986)
- Shull v. Dugger, 515 So. 2d 748 (Fla. 1987)
- Cross v. State, 96 Fla. 768 (Fla. 1928)
- Barber v. State, 564 So. 2d 1169 (Fla. 1st DCA 1990)
- Pittman v. State, 570 So. 2d 1045 (Fla. 1st DCA 1990)