CEDRIC WILSON A/K/A MAMASSEH H.MASSELINE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Cedric Wilson appeals his sentencing in two cases: a 1989 aggravated battery conviction with a five-year departure sentence, and a 1991 cocaine possession conviction while on probation. The appellate court affirmed the sentences, holding that a new departure order was unnecessary for the previously-affirmed aggravated battery conviction, and any error in the cocaine departure sentence was harmless.
The court held that no new departure reasons were required for the previously-affirmed aggravated battery conviction, and any error in the concurrent five-year departure sentence for cocaine possession was harmless because it would not extend beyond the valid ten-year sentence.
[1] A departure sentence for a prior offense, previously affirmed on appeal, does not require new departure reasons when a defendant is subsequently recommitted to prison.
[2] A concurrent sentence that does not extend beyond the completion of a valid, longer sentence is harmless error, even if the concurrent sentence itself is improperly impos…
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Join FLexlaw to unlock all legal intelligence“Although the trial court prepared a departure order for both cases, it was not necessary to provide new departure reasons for the aggravated battery conviction. Wilson previously received a departure sentence for that offense, which was affirmed on appeal.”
Establishes that re-sentencing on a previously affirmed departure sentence does not require new departure reasons
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Join FLexlaw to unlock all legal intelligenceWilson was convicted of aggravated battery in 1989 and received a five-year departure sentence followed by five years probation. While on probation, h…
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COBB, Judge.
Wilson appeals the sentencing disposition in two lower court cases. In 1989, Wilson was convicted of aggravated battery in Case No. 88-8279 and received a departure sentence of five years incarceration followed by five years probation. Wilson was released from prison and while on probation was charged with unlawful possession of cocaine in Case No. 91-337. Wilson pled nolo contendere to the subsequent offense and the violation of probation. A new scoresheet was prepared with the possession of cocaine conviction scored as the primary offense. This scoresheet reflected a recommended range of any non-state prison sanction. Wilson was recommitted to prison for ten years with credit for time previously served and unforfeited gain time on the aggravated battery conviction. For the possession of cocaine conviction, Wilson was sentenced to a concurrent five year term of incarceration with credit for 157 days. The trial court listed four departure reasons.
Wilson claims that the trial court erred in imposing departure sentences for the aggravated battery and possession of cocaine convictions. Although the trial court prepared a departure order for both cases, it was not necessary to provide new departure reasons for the aggravated battery conviction. Wilson previously received a departure sentence for that offense, which was affirmed on appeal. The concurrent five year departure sentence for the possession of cocaine conviction, if error, is harmless because it would not extend beyond the completion of the valid ten-year sentence. Cf Cooper v. State, 539 So. 2d 508, 511 (Fla. 1st DCA 1989), review denied, 548 So. 2d 662 (Fla.1989).
AFFIRMED.
DAUKSCH and HARRIS, JJ., concur.
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Citator
Cited By
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Brady Johnson v. State, 679 So. 2d 882 (Fla. 5th DCA 1996)…er sentence the primary offense on the score-sheet for sentences not habitualized, it urges harmless error because such sentences will be subsumed by the legal, much greater concurrent habitualized sentence. We agree and affirm. See Wilson v. State, 595 So. 2d 1102 (Fla. 5th DCA 1992). AFFIRMED. DAUKSCH and GRIFFIN, JJ., concur.…
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Smith v. State, 629 So. 2d 281 (Fla. 5th DCA 1993)…d). The State also argues that the sentences imposed in the violation of probation cases are subsumed by the larger habitual felony offender sentences and any violation of the guidelines should be overlooked as harmless error. See Wilson v. State, 595 So. 2d 1102 (Fla. 5th DCA 1992) (departure sentence concurrent with legal sentence affirmed even though may be erroneous; error harmless since sentence would not extend beyond concurrent valid sentence). The problem with that view is that because of the many at…
Authorities Cited
- Puesan v. State, 539 So. 2d 508 (Fla. 4th DCA 1989)
- Wilford Cooper v. State, 539 So. 2d 508 (Fla. 1st DCA 1989)