MARK PERKINS, A/K/A, JOHNNY TAYLOR, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Mark Perkins appealed his sentence as a habitual offender following a probation violation. The court reversed his extended sentence imposed under the habitual offender statute because at the time of the underlying crimes, habitual offender status was not a valid ground for departure from guideline sentencing.
A defendant may appeal a sentence imposed under the habitual offender statute for crimes committed before habitual offender status was a valid departure ground, and such sentences must be reversed and remanded for resentencing within the guidelines.
[1] A habitual offender sentence imposed pursuant to section 775.084, Florida Statutes (1991), is illegal and subject to challenge if the offenses were committed prior to the…
[2] A defendant may appeal an illegal habitual offender sentence entered upon violation of probation, even if the habitual offender status was not challenged at the initial s…
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“At the time Mr. Perkins committed these offenses, the habitual offender statute was neither a ground for departure from guidelines sentencing nor an exemption from such sentencing.”
Establishes the legal basis for reversal—the habitual offender statute was not available at the time of the crimes.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligencePerkins was charged with burglary, petit theft, and possession of burglary tools on March 21, 1987. He pleaded guilty on April 10, 1991, and was class…
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ALTENBERND, Judge.
On April 28, 1987, Mr. Perkins was charged with burglary, petit theft, and possession of burglary tools. The offenses occurred on March 21, 1987. On April 10, 1991, Mr. Perkins pleaded guilty, and was classified as a habitual offender. - He was sentenced to community control, followed by probation. On September 13, 1991, he admitted violating the conditions of both community control and probation. He was sentenced on the burglary and possession of burglary tools charges to extended terms of imprisonment pursuant to section 775.084, Florida Statutes (1991).
At the time Mr. Perkins committed these offenses, the habitual offender statute was neither a ground for departure from guidelines sentencing nor an exemption from such sentencing. Whitehead v. State, 498 So. 2d 863 (Fla.1986). Accordingly, we reverse his sentences imposed pursuant to section 775.084, and remand for re-sentencing within the guidelines. See Barber v. State, 584 So. 2d 128 (Fla. 2d DCA 1991).
Contrary to the state’s argument on appeal, our decision in King v. State, 597 So. 2d 309 (Fla. 2d DCA), review denied, 602 So. 2d 942 (Fla.1992), does not preclude a defendant from appealing an illegal habitual offender sentence, entered on violation of probation, merely because he did not challenge the habitual offender status when he was sentenced to probation. In King, we concluded that it was not illegal to impose community control or probation upon a defendant who has been declared a habitual offender, and that any attack upon such sentencing after revocation of community control or probation was untimely. 597 So. 2d at 313. In this case, however, habitual felony offender sentencing was not legally available at the time Mr. Perkins committed the offenses.
Thus, the sentence imposed under the habitual offender statute may be challenged at this time. See, e.g., Kiser v. Mayo, 138 Fla. 775, 190 So. 246 (1939) (where judgment and sentence were not authorized by law, trial court’s jurisdiction continues until lawful judgment entered); Greenhalgh v. State, 582 So. 2d 107 (Fla. 2d DCA 1991) (sentence that exceeds statutory maximum is illegal and may be appealed at any time); Wahl v. State, 543 So. 2d 299 (Fla. 2d DCA) (departure sentence imposed for crimes committed prior to effective date of guidelines was illegal and subject to attack by motion to correct illegal sentence), review denied, 551 So. 2d 463 (Fla.1989).
Reversed and remanded for resentencing.
RYDER, A.C.J., and HALL, J., concur.
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Cited By
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Dunham v. State, 683 So. 2d 507 (Fla. 4th DCA 1996)…POLEN and SHAHOOD, JJ., concur. . Although Appellant did not appeal the illegal provision when initially announced, he is not precluded from raising it at this time. See Shaw; Watkins v. State, 622 So. 2d 1148 (Fla. 1st DCA 1993); Perkins v. State, 616 So. 2d 580 (Fla. 2d DCA 1993); Davis.…
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Smith v. State, 641 So. 2d 976 (Fla. 4th DCA 1994)…ffenses were committed in January 1988, habitual offender status was neither a ground for departure from guidelines sentencing, nor did it provide exemption from guidelines sentencing. Whitehead v. State, 498 So. 2d 863 (Fla.1986); Perkins v. State, 616 So. 2d 580 (Fla. 2d DCA 1993). Accordingly, we reverse defendant’s sentence imposed and remand this case for re-sentencing. On remand, however, the trial court should be permitted to consider a departure sentence because it was unaware that it was acting on a…
Authorities Cited
- Whitehead v. State, 498 So. 2d 863 (Fla. 1986)
- King v. State, 597 So. 2d 309 (Fla. 2d DCA 1992)
- Wahl v. State, 543 So. 2d 299 (Fla. 2d DCA 1989)
- Greenhalgh v. State, 582 So. 2d 107 (Fla. 2d DCA 1991)
- Monk Kiser alias Peg Kiser v. Mayo, 138 Fla. 775 (Fla. 1939)
- Cuno Corp. v. Lamb, 138 Fla. 773 (Fla. 1939)
- Barber v. State, 584 So. 2d 128 (Fla. 2d DCA 1991)