STEWART PETER STRICKLAND, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Strickland appealed the revocation of his probation and resulting sentences on nine cases involving theft and negotiable instrument offenses. The court affirmed the probation revocation and habitual offender classification but reversed the sentences and restitution orders as exceeding guideline limits and imposed without proper procedure.
The court affirmed the probation revocation and habitual offender classification but reversed the departure sentence because the habitual offender statute had not been amended to exempt it from guidelines at the time of the offenses. The court also reversed the restitution orders and remanded for resentencing within proper guidelines, applying the pre-July 1, 1988 guidelines with appropriate scoring of offenses.
[1] A trial court may not depart from recommended guidelines sentences based on a defendant's classification as an habitual offender if the offenses were committed before the…
[2] Classification as an habitual offender is permissible even if the sentence does not exceed the maximum guideline sentence, including a one-cell increase for probation rev…
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Join FLexlaw to unlock all legal intelligence“Prior to the 1988 amendment, a trial court could not enhance a sentence in excess of the guidelines under the habitual offender statute.”
Establishes that the trial court erred in departing from guidelines based on habitual offender status for offenses committed before the amendment became effective.
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Join FLexlaw to unlock all legal intelligenceStrickland was serving probation on nine cases with eleven counts of theft and negotiable instrument offenses committed before July 1, 1988. His proba…
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PER CURIAM.
The appellant challenges the order revoking his probation and the resulting sentences and orders of restitution. We affirm the revocation of probation, but reverse the sentences and restitution orders and remand for a restitution hearing and resentencing within the guidelines.
The appellant was serving probation on nine separate cases consisting of eleven counts of theft and negotiable instrument offenses, all of which were committed before July 1, 1988. His probation was revoked in September 1990, and he was sentenced in excess of the recommended guidelines sentence. The reason given for departure was the appellant’s classification as an habitual offender in the three more recent cases.
The state concedes all of the sentencing issues except the appellant’s classification as an habitual offender. At the time of the offenses for which the appellant was habitualized, the guidelines statute 1 had been construed to preclude the application of the habitual offender statute as an alternative to guidelines sentencing or as a reason for departure. See White head v. State, 498 So. 2d 863 (Fla.1986).
In 1988, the habitual offender statute2 was amended to exempt it from the guidelines; however, the amendment did not become effective until October 1, 1988, after the commission of the offenses for which the appellant was being sentenced. Ch. 88-131, § 6, Laws of Fla. Prior to the 1988 amendment, a trial court could not enhance a sentence in excess of the guidelines under the habitual offender statute.
Therefore the trial court erred in departing from the guidelines for the reason that the appellant was classified an habitual offender.
Nevertheless, as the state maintains, this construction did not prohibit classification as an habitual offender so long as the sentence did not exceed the maximum guideline sentence including the one-cell increase for revocation of probation. See Winters v. State, 522 So. 2d 816 (Fla.1988). We therefore reverse the departure sentence but affirm the appellant’s classification as an habitual offender. The appellant raises four additional sentencing issues on appeal, which the state concedes, and we reverse. Upon re-sentencing, the trial court may not exceed the one-cell increase for a probation revocation. See Ree v. State, 565 So. 2d 1329 (Fla.1990).
Moreover the trial court must apply the guidelines in effect at the time of the offenses for which the appellant is being sentenced. Brady v. State, 587 So. 2d 617 (Fla. 2d DCA 1991). Because the appellant’s offenses were committed before July 1, 1988, they were not subject to guideline amendments enacted in chapter 88-131, section 1, Laws of Florida.
Thus upon resentencing, the permitted range of the guidelines must not be applied and offenses for which probation was revoked must be scored as additional offenses instead of as prior record. Watts v. State, 580 So. 2d 899 (Fla. 2d DCA 1991) and DeVille v. State, 529 So. 2d 319 (Fla. 2d DCA 1988). We also reverse the restitution orders imposed in this case because the appellant was not afforded an opportunity to be heard. See Johnson v. State, 547 So. 2d 300 (Fla. 3d DCA 1989).
In summary, we affirm the revocation of probation and the appellant’s classification as an habitual offender, but we reverse the sentences and orders of restitution and remand for resentencing within the guidelines.
Affirmed in part; reversed in part.
HALL, A.C.J., and THREADGILL and PARKER, JJ., concur. . § 921.001(4)(a), Fla.Stat. (1987).
. § 775.084, Fla.Stat. (1987).
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State v. Matthews, 891 So. 2d 479 (Fla. 2004)…urdick v. State, 594 So. 2d 267, 270 (Fla.1992); see also Studnicka v. State, 679 So. 2d 819, 821 (Fla. 3d DCA 1996) (“After. 1988, the sentencing guidelines do not apply to habitual offender sentences.”) (emphasis in original); Strickland v. State, 596 So. 2d 1155, 1156 (Fla. 2d DCA 1992) (stating that in 1988, the habitual offender statute was amended to exempt it from the sentencing guidelines); Daniels v. State, 591 So. 2d 1103, 1104 (Fla. 5th DCA 1992) (noting that once a defendant is adjudicated a habitu…
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Fuston v. State, 764 So. 2d 779 (Fla. 2d DCA 2000)…use Fuston’s underlying claim is without substantive merit. See Bumsed. Fuston was sentenced as a habitual violent felony offender in 1993. In 1988, the habitual offender statute was amended to exempt it from the guidelines. See Strickland v. State, 596 So. 2d 1155, 1156 (Fla. 2d DCA 1992); see also § 775.084(4)(e) (“A sentence imposed under this section is not subject to s. 921.001.”). Hence, the fact that Fuston’s habitual offender sentence exceeds the guidelines and the trial court gave no written reasons f…
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Shelton v. State, 739 So. 2d 1235 (Fla. 4th DCA 1999)…e his habitual offender status was not a valid basis for departure from the sentencing guidelines under the law in effect at the time when his offenses were committed. We agree. See Whitehead v. State, 498 So. 2d 863 (Fla.1986); Strickland v. State, 596 So. 2d 1155 (Fla. 2d DCA), rev. denied, 602 So. 2d 942 (Fla.1992), cert. denied, 507 U.S. 923, 113 S.Ct. 1289, 122 L.Ed.2d 681 (1993). Specifically, he alleges that his September 7, 1987 and July 20, 1988 offenses preceded the October 1, 1988 effective date of…
Previewing 3 of 10 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)
- REE v. State, 565 So. 2d 1329 (Fla. 1990)
- Winters v. State, 522 So. 2d 816 (Fla. 1988)
- DeVILLE v. State, 529 So. 2d 319 (Fla. 2d DCA 1988)
- Maritza Barroso v. State, 547 So. 2d 300 (Fla. 3d DCA 1989)
- Johnson v. State, 547 So. 2d 300 (Fla. 3d DCA 1989)
- Brady v. State, 587 So. 2d 617 (Fla. 2d DCA 1991)
- Bines v. State, 580 So. 2d 899 (Fla. 1st DCA 1991)
- Napoleon James Reed v. State, 580 So. 2d 899 (Fla. 1st DCA 1991)