RICHARD MURL BOOMER, JR., APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Boomer challenges an upward departure sentence imposed on remand for resentencing within the guidelines. The court holds that making guidelines sentences consecutive to a non-guidelines sentence does not constitute an upward departure and affirms the sentence.
The court holds that making guidelines sentences consecutive to a non-guidelines sentence does not constitute an upward departure from the guidelines. A sentence is not an upward departure merely because it is ordered consecutive to another sentence.
[1] A trial court does not impose an upward departure sentence by making guidelines sentences consecutive to a prior non-guidelines sentence for a capital felony.
[2] Sentencing guidelines do not preclude a trial court from making guidelines sentences consecutive to a sentence for a capital felony.
Previewing 2 of 3 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“The appellant's sentencing guidelines scoresheet placed him in a recommended range of seven to nine years. On remand, the trial court imposed concurrent sentences of nine years imprisonment.”
Establishes that the sentences imposed were within the guidelines range
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Join FLexlaw to unlock all legal intelligenceBoomer was convicted of sexual battery on a child under age 12 (life sentence), attempted sexual battery, and lewd assault. On remand for resentencing…
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PER CURIAM.
The appellant claims that the trial court improperly imposed an upward departure sentence upon him on remand by this court for resentencing within the guidelines. We hold that the sentence is not an upward departure and affirm.
In Boomer v. State, 564 So. 2d 1232 (Fla. 2d DCA 1990), this court affirmed the appellant’s convictions and his sentence of life imprisonment on one count of sexual battery on a child under the age of twelve. We found that consecutive sentences of thirty years and fifteen years on two other counts, attempted sexual battery and lewd assault, constituted an improper departure from the guidelines. Accordingly, we remanded with directions that the appellant be sentenced within the guidelines on those two offenses.
The appellant’s sentencing guidelines scoresheet placed him in a recommended range of seven to nine years. On remand, the trial court imposed concurrent sentences of nine years imprisonment. It then made these two concurrent sentences consecutive to the sentence of life imprisonment which the appellant received on the sexual battery count. The appellant argues that by making the guidelines sentences consecutive to the nonguidelines sentence for the capital felony, the trial court departed from the recommended range of the guidelines.
We have found only one other case in Florida addressing this issue. That is the decision of the Fifth District Court of Appeal in Wood v. State, 593 So. 2d 557 (Fla. 5th DCA 1992). In that case, a guidelines sentence of life imprisonment was made consecutive to two nonguidelines sentences (habitual offender) totaling eighty years. The court said that the life imprisonment sentence was a departure sentence because, by being consecutive, the defendant does not commence service of the life sentence until after the expiration of the other sentences of eighty years and, thus, has been sentenced to something in addition to life imprisonment which is a departure from the recommended' guidelines sentence.
We respectfully disagree with the reasoning of our sister court in Wood v. State and hold that the sentence imposed upon the appellant in this case is not an upward departure sentence. We express direct conflict with the decision in Wood v. State.
Affirmed.
RYDER, A.C.J., and DANAHY and LEHAN, JJ., concur.
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Ricardo v. State, 608 So. 2d 93 (Fla. 2d DCA 1992)…elony. Finally, appellant argues that, by ordering appellant to serve his habitual sentences consecutive to his guidelines sentences, the court departed from the guidelines and exceeded the maximum. However, this court has found in Boomer v. State, 596 So. 2d 730 (Fla. 2d DCA 1991), rev. pending, No. 79,638, that a nonguide-lines sentence (habitual offender sentence) is not to be considered when calculating the maximum guidelines sentence. Therefore, a proper guidelines sentence can be ordered consecutive to…
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Gipson v. State, 616 So. 2d 992 (Fla. 1993)…SHAW, Justice. We have for review Gipson v. State, 603 So. 2d 64 (Fla.2d DCA 1992), which relied on Boomer v. State, 596 So. 2d 730 (Fla.2d DCA 1992). We have jurisdiction. Art V, § 3(b)(3), Fla. Const. We approve Gipson. Gipson was convicted of numerous drug-related crimes and sentenced to two concurrent guidelines maximum sentences to be served consecutively with his several…
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Boomer v. State, 616 So. 2d 991 (Fla. 1993)…SHAW, Justice. We have for review Boomer v. State, 596 So. 2d 730 (Fla. 2d DCA 1992), wherein the district court recognized conflict with Wood v. State, 593 So. 2d 557 (Fla. 5th DCA 1992). We have jurisdiction. Art. V, § 3(b)(4), Fla. Const. We approve Boomer. Boomer was convicted of sexual battery on a child und…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Wood v. State, 593 So. 2d 557 (Fla. 5th DCA 1992)
- Boomer v. State, 564 So. 2d 1232 (Fla. 2d DCA 1990)