JOHNNIE JAMES WEST, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that while the defendant qualified as a habitual offender, the sentencing score sheet contained inconsistent notations, requiring resentencing.
[1] Substantial, competent evidence is sufficient to support a trial court's finding that a defendant qualifies as a habitual felony offender.
[2] A trial court's written notation on a sentencing scoresheet that is inconsistent or ambiguous may require resentencing.
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Join FLexlaw to unlock all legal intelligenceThe defendant was convicted of robbery with a firearm and sentenced as a habitual offender. He appealed, arguing insufficient evidence for habitual of…
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SCHEB, Acting Chief Judge.
Johnnie James West appeals his sentence of life in prison for robbery with a firearm, section 812.13, Florida Statutes (1989). West makes two contentions.
First, West argues that the state failed to present sufficient evidence to qualify him as a habitual felony offender. We disagree. There was substantial, competent evidence to support the trial court’s finding that West was a habitual offender. The state filed a proper notice of intention to seek an enhanced sentence under section 775.084, Florida Statutes (1989). At the sentencing hearing, the State presented two certified copies of prior judgments and sentences and a pre-sentence investigation report, which the trial judge read into the record and to which West did not object. This evidence indicates that West had two prior Florida felonies and that the instant offense was committed within five years of his release from a sentence for the last one and he had not been pardoned or received post-conviction relief.
Second, he argues that he must be resentenced because of inconsistent notations in his sentence. We must agree. Although the trial court properly found West met the criteria for a habitual offender, it wrote “habitual offender” as well as “guideline life” in the space provided for reasons for departure on the scoresheet. Thus, we cannot determine whether the trial court intended to sentence West as a habitual offender or attempted to use habitual offender status as a reason for departure from the guidelines. Accordingly, we remand to the trial court for reconsideration of the sentence. See Walsingham v. State, 576 So. 2d 365 (Fla.2d DCA 1991); State v. Allen, 573 So. 2d 170 (Fla.2d DCA 1991). In so holding, we note that a determination that a defendant is a habitual offender is not a valid reason for departure. Whitehead v. State, 498 So. 2d 863 (Fla.1986).
We affirm West’s conviction but reverse the sentence and remand for proceedings consistent with this opinion.
LEHAN and ALTENBERND, JJ., concur.
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Citator
Cited By
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King v. State, 597 So. 2d 309 (Fla. 2d DCA 1992)…ons for departure were already in existence at the time probation or community control was imposed. But since habitual offender status is not a proper basis for an upward departure, e.g., Whitehead v. State, 498 So. 2d 863 (Fla.1986); West v. State, 583 So. 2d 394 (Fla. 2d DCA 1991), Williams can be viewed as questionable authority for the extended sentence in this case upon revocation of probation or community control beyond the one-cell bump up restriction of Lambert. Further indicating that Williams was n…
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Wilson v. State, 584 So. 2d 147 (Fla. 2d DCA 1991)…lines. Whitehead v. State, 498 So. 2d 863 (Fla.1986) (interpreting an earlier version of the habitual offender statute). Despite changes in the habitual offender statute, we will prohibit a departure based on habitual offender status. West v. State, 583 So. 2d 394 (Fla. 2d DCA 1991). Under the current statute, a defendant can be declared a habitual offender if he has committed a few crimes within a specified temporal window. If the trial court cannot use the timing of offenses as a reason to depart under the…
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McKNIGHT v. State, 595 So. 2d 1059 (Fla. 2d DCA 1992)…aced in the court file. The record does not indicate that certified copies of the prior convictions were produced, and therefore, there is no indication that the trial court made the required findings concerning prior convictions. See West v. State, 583 So. 2d 394 (Fla. 2d DCA 1991). We, accordingly, remand so that the trial court may either make the required findings or, if the requisite prior convictions do not exist, resentence him. Reversed and remanded with instructions. SCHOONOVER, C.J., and THREADG…
Authorities Cited
- Whitehead v. State, 498 So. 2d 863 (Fla. 1986)
- State v. Allen, 573 So. 2d 170 (Fla. 2d DCA 1991)
- Walsingham v. State, 576 So. 2d 365 (Fla. 2d DCA 1991)